Schuman v. Greenbelt Homes - Record Extract Volume 2 of 4

IN THE COURT OF SPECIAL APPEALS OF MARYLAND --------------------------------------------------------------------------------------Number 2020 September Term, 2011 --------------------------------------------------------------------------------------DAVID S. SCHUMAN, Appellant v.
GREENBELT HOMES, INC., et al. Appellees --------------------------------------------------------------------------------------On Appeal from the Circuit Court for Prince Georges County Albert W. Northrop, Associate Judge --------------------------------------------------------------------------------------APPELLANT DAVID S. SCHUMANS RECORD EXTRACT Volume II of IV --------------------------------------------------------------------------------------J.P. Szymkowicz John T. Szymkowicz SZYMKOWICZ & SZYMKOWICZ, LLP 2300 N Street, N.W., Suite 5310 Washington, DC 20037-1122 (202) 862-8500 (voice) jp@szymkowicz.com john@szymkowicz.com Rita Turner 15600 Bald Eagle School Road Brandywine, Maryland 20613 (410) 706-1129 (voice) rturner@law.umaryland.edu
Counsel for Appellant David S. Schuman
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IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND DAVID S. SCHUMAN, Plaintiff, vs. GREENBELT HOMES, INC., et al, Defendant. _______________________/ CIVIL ACTION LAW 10-06047
REPORTER'S OFFICIAL TRANSCRIPT OF PROCEEDINGS (Trial Before the Court) VOLUME II OF VII Upper Marlboro, Maryland Thursday, August 18th, 2011
BEFORE: HONORABLE ALBERT W. NORTHROP, Associate Judge
Record Extract Page 458
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Diana L. Wakefield, RMR Official Court Reporter P.O. Box 401 Upper Marlboro, Maryland DARKO POPOVIC, PRO SE For the Defendant GHI: JASON FISHER, ESQUIRE MICHAEL GOECKE, ESQUIRE APPEARANCES: For the Plaintiff: J. P. SZYMKOWICZ, ESQUIRE RITA TURNER, ESQUIRE
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P R O C E E D I N G S THE DEPUTY CLERK: Greenbelt Homes, Inc. MR. SZYMKOWICZ: Good morning. J. P. Szymkowicz CAL10-06047, Schuman versus
on behalf of Mr. Schuman, who is in the witness box. THE COURT: MR. FISHER: Good morning. Good morning, again. Jason Fisher
on behalf of Greenbelt Homes, Inc. MR. GOECKE: Michael Goecke on behalf of
Greenbelt Homes, Inc. also. MR. POPOVIC: Good morning. Darko Popovic, pro
MS. FISHER: Greenbelt Homes.
Your Honor, Gretchen Overdurff from
(Witness resworn.) THE DEPUTY CLERK: Please state your first and
last name and spell them for the record. THE WITNESS: S-C-H-U-M-A-N. THE DEPUTY CLERK: Keep your voice up. David Schuman, D-A-V-I-D,
DAVID SCHUMAN, a witness produced on call of the Plaintiff, having been previously duly sworn, was resworn and examined and testified as follows: DIRECT EXAMINATION (Continued)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q.
BY MR. SZYMKOWICZ: Did you have to change your living habits due to
the Popovic's smoking? A. Q. A. Yes, I did. How did you change them? Last night is a good example. I got home; very
stressful day. patio.
Mr. Popovic is outside smoking on his I can't use my
I can't sit out on my patio.
rocking chairs. inside. Q.
I had to close all my windows and go
Do you consider the Popovics' smoking to be a
nuisance as that term is defined in the Mutual Ownership -MR. FISHER: THE COURT: Objection, Your Honor. Sustained.
BY MR. SZYMKOWICZ: How else has the Popovics smoking forced you to
change your living habits? A. Well, aside from the worry and not full use of
my property, I suppose it would be having to deal with my medical effects from the smoking. situation. It's a very unpleasant
I don't feel like I have full use of my That's essentially what the
property, and I have to move.
cooperative and Mr. Popovic have left me with. Q. Are you making a claim for monetary damages due
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to the Popovics' smoking? A. Q. I am. I believe that GHI mentioned that in their
opening statement, you know, that you are seeking that, and almost incredulously that you could be seeking that. MR. FISHER: Characterization. Objection, Your Honor.
He's testifying, Your Honor. I believe what he's referring to
THE COURT:
what, if not an exact quote, something close to it, was mentioned in opening statement; so, that's all right. BY MR. SZYMKOWICZ: Q. Are you seeking a specific amount or are you
leaving that up to the Court? A. What I really want is to stay in my house That's really what the case is
without having the smoke.
about, and I don't have any other choice; so, I was forced to do it. The number that I thought was most appropriate is the value of my house if I were to sell it when I wanted to. I don't want to sell it now, but I have to
because I can't live there. Q. Are you seeking compensation for the noise and
inconvenience that you suffered? A. Absolutely, continued to this time. I continued
to suffer up to and including last night.
The situation
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continues, and I don't understand why there's no common courtesy and respect here. Mr. Popovic understands that It's medically
this is very hurtful and painful to me.
very damaging, and he continues to do the conduct. MR. FISHER: Objection, Your Honor. Your
Honor, with respect to his continued references to medical damages, there has been nothing submitted to the Court, thus far; so, hasn't been any testimony; move to strike those comments. THE COURT: At this point, there are no bills or
no medical records or anything like that, so sustained. BY MR. SZYMKOWICZ: Q. A. Q. A. position. Are you seeking monetary damages against GHI? I am. Why? Because they have put me in an impossible I played by what I thought were all the rules
very carefully of the cooperative very politely and in a very civil manner, and followed the administrative process. I have continued to suffer this pain and damage I feel
during the entire time without any recompense. that that is just unjustified.
It's caused me a lot of
hurt; most especially because I wanted to stay in this community. I like the community. I like where I live.
My house is close to work.
I spent a lot of time and
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effort in upgrading the place. I don't want to leave. choice. Q.
It looks beautiful inside. I have no other
I have to leave.
Do you believe that the Popovics' smoking
interfered with your reasonable use and enjoyment of your property? A. Of course. MR. FISHER: THE COURT: THE WITNESS: Objection. It's all right. Like I said a few times, I can't
fully use my property the way I feel I would like to use it. Mr. Popovic is free to use his property the way he
wants to; gets to sit on his patio; keep his windows open. I can't keep my windows open on a nice day like it was yesterday. I would like to be able to sit on my patio; I would like to
use my rocking chairs; enjoy my property. use my backyard.
I would like to keep my windows open;
have the fresh breeze blow through my house on nice days. I don't want to have to run the air conditioner and pay for that. right. Q. Did the Popovics' smoking do something to you Done dealing with this problem. It's just not
more than offend your senses? A. I believe it did. It caused me a lot of
difficulties for which I had to go see Dr. Granite.
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MR. FISHER:
Objection, Your Honor. His belief, Your Honor.
MR. SZYMKOWICZ: THE COURT: THE WITNESS:
I'll accept it. I went to see Dr. Granite on, at
least, two occasions; probably there during the time Ms. Popovic was smoking, and I talked to Dr. Granite about this, and I had a very difficult upper respiratory condition, which I never had before, and I got treated with antibiotics. I just feel that that is just
completely unreasonable. Q. Do you believe that the Popovics' smoking
diminished materially the value of your property as a dwelling place? A. Q. Yes, I do. How? MR. FISHER: THE COURT: MR. FISHER: be heard on this issue? THE COURT: MR. FISHER: Sure. Your Honor, while Mr. Schuman, Objection, Your Honor. That's all right. Objection, Your Honor. If I may
under Maryland Law, may be able to testify as to the value of his home based upon what he believes he can sell it for, his ability to testify as to any diminshed value based upon any specific condition is not something he's
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competent to testify to. estate.
He has no expertise in real
He has no ability to testify to about what does He cannot
and does not affect the market conditions.
testify to any opinion, Your Honor, without expert testimony to any diminished value based on specific costs. Without raising a flag as to the sorts of possibilities that are going through my own mind, I'll let him testify subject to a Motion to Strike. If there is
something that is hearsay, Your Honor, I will strike that, but I can think of where something he may be able to testify to, and I'm not going to, like I say, raise that flag. THE WITNESS: sell my house now. Well, the main reason, I have to
It's a bad time to sell a house, and I
don't think I could get the value for it that I would get if I sold it when I wanted to sell it. use my property fully. property. property. Secondly, I can't
I don't have use of part of the
The back porch and the backyard are part of the I want to be able to use those. I want to sit
outside and enjoy my patio.
Like Dory indicated she can't I'm
use her screened-in porch, I can't use my back patio.
not going to sit out there and breathe in this secondhand smoke, which I understand can be very dangerous. Q. What percentage of your property do you consider
the parts that you are not able to use?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q.
MR. FISHER: THE COURT: THE WITNESS:
Objection, Your Honor. The question is percentage. Hard for me to calculate a I understand that the
percentage, not being an expert.
yard, both the garden side yard and service side yard, are set aside for the use of members, including the patio. terms -BY MR. SZYMKOWICZ: I'm not talking about square footage. I'm In
talking about as far as your use of the property, is there a way for you to apportion the part that you are not able to use? A. It's a major feature of the property. MR. FISHER: THE WITNESS: Objection, Your Honor. Backyard, it has a nice green Not to put a percentage on It's like
yard; has a patio I can't use.
it; it's a major feature of the property.
saying you can stay inside, but you can't stay outside. BY MR. SZYMKOWICZ: I direct your attention to page five. You have
Judge Northrop's order of September of last year. Specifically, at the bottom of the page, it states, "It is true that there are certain inconveniences and discomforts incident to living in a city or in a thickly-settled suburban community. These discomforts
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must be endured as part of the privilege or at least of the fulfillment of the desire of living in close proximity to other people. But these discomforts must not be more
than those ordinarily to be expected in the community, and incident to the lawful use of the offending property or business. If they exceed what might be reasonably
expected and cause unnecessary damage or annoyance, then the Court in an appropriate case will act." What kind of things do you consider that you should -- you should have to endure just because you live in a community? A. Excessive noise, perhaps once in awhile; trash
in my neighbor's yard once in awhile; barking dog; a party. I live in a cooperative community. I understand
it's not a single-family home; that being said, if it's a health hazard, something that the cooperative has indicated -MR. FISHER: THE WITNESS: Objection, Your Honor. I don't think I should be
subjected to a health hazard. MR. FISHER: Objection, Your Honor. There has
been no characterization; his representations as to what GHI said. Number two, nothing has been submitted on that
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issue; goes to the ultimate issue of the case.
He's
trying to interject issues with respect to what GHI has found with respect to this issue. There has been nothing
submitted into evidence; there has been no foundation laid to where he bases that on. THE COURT: THE WITNESS: I move to strike that comment.
I'll strike that comment. Let me answer it this way: I
don't think I should reasonably be expected to put up with something that is dangerous, dangerous to my health. That's not reasonable to put up with in the normal course of life. I don't consider myself to be unduly sensitive.
Like I mentioned, a barking dog once in awhile or loud music once in awhile, fine. the backyard not fine. Any other examples I could come up with. Something that is dangerous and bad for someone's health on a regular basis, every single time Mr. Popovic sits outside is not reasonable in my view? BY MR. SZYMKOWICZ: Q. In order to keep the injunction on the inside of You know, burning tires in
the house, inside, the smoking going on, and to obtain an injunction on the outdoor smoking, you need to prove that you will suffer an irreparable -MR. FISHER: THE COURT: Objection, Your Honor. Haven't heard the question.
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BY MR. SZYMKOWICZ: -- unless the injunction is granted. Do; you
believe that if the Court doesn't continue the inside smoking injunction or if the Court doesn't order an injunction on the outdoor smoking, that you will suffer an irreparable injury; if so, what is the irreparable injury? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. Go ahead. Yes, in several respects. First
of all, the fact that I can't -- haven't been able to use my property; haven't been able to sit on my patio; haven't been able to use my backyard since this acitivity started up until the present time, including up until last night; the fact that I have to keep my windows closed and feel sealed up in a house all the time, that continues dealing with Mr. Popovic's outside smoking. If he were to smoke inside, I have every reason to suspect I would suffer even greater injury as I learned from Mr. Repace. MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. I'll strike that. In the apartment while the
Popovics were smoking inside, it was absolutely intolerable; much worse than the outside smoke coming in. I certainly couldn't be in my apartment, and I probably
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would get a hotel room at that point; not to mention having to go back to Dr. Granite and, again, complain of these effects from the exposure to cigarette smoking. MR. FISHER: strike again. THE WITNESS: THE COURT: to Dr. Granite. MR. SZYMKOWICZ: Your Honor. THE COURT: Cross. CROSS-EXAMINATION BY MR. FISHER: Q. Mr. Schuman, you started off this morning I have no further questions, Absolutely intolerable situation. I'll strike the comment with regard Objection, Your Honor. Move to
talking about the inconvenience you had last night actually when you went home after being in Court all day, is that right? A. Q. Yes. You talked about how Mr. Popovic went on his
patio; smoked a cigarette, which forced you to then go inside, is that right? A. I don't know how many cigarettes he was smoking.
I couldn't stay out on my patio. Q. A. You were on your patio, correct? I went out to let the dog out, yes.
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Q. A. Q.
And you have a dog now? I do. So you were outside on your patio allowing your
dog to do his business or going for a walk? A. afternoon. I let him outside since he was in the house all I saw Mr. Popovic smoking. I smelled it. I had to go back
It's not something I want to experience. inside. Q. minutes? A.
Mr. Popovic was on his patio for all of five
I don't know how long he was on his patio. It's the smoke.
It's
not the time that is important. Q.
So the fact that you see Mr. Popovic on his
patio smoking immediately causes you to go inside, and close your windows and close your doors? A. smoke. Q. Didn't you just say when you saw Mr. Popovic It's not seeing Mr. Popovic. It's smelling the
light a cigarette last night -A. Q. I did. -- when you saw him do that, you brought the dog
inside; went inside immediately? A. Q. That's not what I said. Why don't you explain to me exactly the fact
that happened last night?
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A.
I came home.
I let the dog out.
Mr. Popovic is
outside smoking the cigarette. patio and my yard.
Smoking drifts across my I had to go inside
I can't stay out.
and close all my windows. Q. A. Q. A. Q. A. Q. A. Did you try to go outside later in the evening? Excuse me? Did you try to go outside later in the evening? I had to bring the dog back later, sure. Did you go out fifteen, twenty minutes later? I don't think so. Did you go out an hour later? That's the whole point. I'm not on my patio. I
can't use my patio. Q. Last night you chose not to go back out after
Mr. Popovic went in? A. I choose not to be on the patio whenever
Mr. Popovic -- Mr. Popovic's smoke is drifting onto my property. Q. The smoke isn't constantly drifting onto your
property when Mr. Popovic is not outside? A. Q. smoking? A. I don't monitor exactly when he's smoking. Whenever he's outside it is. Is Mr. Popovic outside your home constantly
Whenever he is smoking, the smoke drifts over to my patio.
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It's usually every night. Q. A. Q. A. You work Monday through Friday? Yes. Most days, yes.
Typical eight, nine hour day? Usually I get home in the evening around 5:00, Depends on if I'm coming straight home or
6:00 o'clock. not sure Q. evening? A. Q. A. Q.
What time do you go to bed typically in the
10:00, 11:00 o'clock. Five-hour window that you are home typically? Could be. In that five-hour period, are you saying that
you are unable to go out on the patio at any point in time because Mr. Popovic is smoking all the five hours on his patio? A. What I'm saying, I can't use my patio and my
backyard when he's smoking. Q. My question to you is during the five hours, are
there any opportunities that you have to use your patio? A. I don't enjoy going out onto the patio, A, when
he's smoking and, B, because he may come out to smoke. Q. smoke? A. Exactly. So it's also the fear that he may come out and
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Q.
So if -- you choose not to go on your patio
because you're afraid Mr. Popovic may come out and smoke while you're outside? A. Q. Exactly. Let me go back a little bit in time to 1996 and
1997 when this issue originally arose with respect to your complaints to GHI about the secondhand smoke bothering you in your unit. A. That about the time frame? I don't consider that to be
I don't think so.
relevant, no. Q. Well, you testified that there were complaints
you made in 1996, 1997 to GHI that initiated an investigation of sorts about him, right? A. Q. Yes. And at that time, you actually, at first,
initiated contact, it's with GHI, and asked them to come in and seal your unit, correct? A. Q. A. No, that's not correct. Not correct? I didn't ask GHI to come seal the unit. I
complained about the smoking problem, with Dory. Q. Mr. Schuman, what is the mechanism you take to
ask for a work order in the community for them to come out and do work in your property? A. You can do that online or you can call; make a
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request by phone. Q. Okay. When you go online, what's the process?
You fill out and it generates a computer-generated form? A. Q. A. Q. A. Q. I haven't used it. Have you in the past requested work orders? By phone call. You make a call to whom? Maintenance Department. They fill out a form based on what you tell them
to be done? A. Q. They usually leave me a copy of the work order. Okay. When the work order is completed, it
indicates what work was done, correct? A. Q. It should, yes. On that same work order, it indicates what the
original request was, as well, submitted by you? A. It may or may not. They don't always cover
everything I have said in the phone call. Q. You understand that you are testifying under
oath today, correct? A. Q. Of course. And back in 1996, October of 1996, you lived in
the property in which you live now, correct? A. Q. Yes. Okay. And you lived in GHI, and do you recall
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submitting a work order to GHI that specifically requested to check to seal walls because your next-door neighbors were smoking? A. I have submitted many work order requests. What
is on the work order is not necessarily what I made in the request. It's not a transcript of what I said in the
phone conversation with GHI. MR. FISHER: Your Honor? BY MR. FISHER: Q. If you could turn to Exhibit No. 5, Defendant's I would like to retrieve exhibits,
Exhibit No. 5. A. many -Q. There's no question pending. If you could just I'm not trying to be difficult. We tried
look at Exhibit No. 5.
Do you recognize that document as
a work order that was submitted by you back in October of 1996? A. Again, this is not what I would have submitted. What GHI
I made a phone call to describe the situation. puts on the work order is up to GHI. Q. A. Q. Do you recall receiving it from them? I probably received it, sure.
It indicates under, number one, Work Requested,
Number One, "Check to seal walls next door member smoke."
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That's something you believe you would have told GHI back in 1996? A. I described the smoking problem to GHI. We both One of
tried in good faith to try to address the problem.
the options that could have been tried, I think, was tried by GHI was to seal. Q. So you don't disagree that, one, that GHI tried
to do back in '96 and '97 was to seal the unit? A. Q. Not at all. I agree a hundred percent.
As a matter of fact, that was one of the things
that was discussed; you suggested to be tried as part of the investigation to try to address the problem? A. Q. Sure. Sure.
So do you agree that you would have made a
request for GHI to seal the unit to stop the smoking from your next door neighbors? A. Q. No, I don't. So you are saying this work order was not
submitted by you when requested by you? A. I did submit a work order request. I wanted to I think
try to address the problem, the smoke coming in.
both parties tried, in very good faith, to try every option to address the problem, and one of the options that was tried was to seal between the units. Q. As a matter of fact, this work order indicates,
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the note back from the maintenance personnel after your request, "I don't know of anything else to do to stop the smell of smoke coming in. If you can think of anything
else we can do," call us, or excuse me, "give us a call"? A. Q. drain? A. Q. done? A. I don't know the extent of GHI sealing. I do Sure. Do you recall that that was something that was Sure. Caulked around water pipes in bathroom, washer
agree that GHI tried to seal between units in good faith. MR. FISHER: Your Honor, I move Defendant's
Exhibit 5 into evidence. MR. SZYMKOWICZ: Your Honor, I'm going to let
this go because -- and not contest, but there's no authentication; for the same reason, it would just be delaying the inevitable, but I'll let it go. THE COURT: Okay. I'll admit as you say.
(Whereupon, Defendant's Exhibit No. 1, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Q. Mr. Schuman, I think you just testified that in
1996, 1997, GHI and you and -- well, at least GHI and you
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were working in good faith to try to address the problems that you and Ms. Ipolito were complaining about, correct? A. Q. Yes, of course. At no time did GHI ignore your requests to look
at the issue, correct? A. Q. No, of course not. At no time were they hostile to you about
looking into it? A. No, of course not, present situation excepted,
but in '96, '97, no. Q. A. situation. MR. SZYMKOWICZ: Your Honor, I have to object to Our trial is going to go It's They weren't malicious, were they? '96, '97, no; again, distinct from the current
this entire line of questioning.
on until Christmas if we keep going '96, '97 stuff. not being disputed GHI did their best with the given medical knowledge and stuff, technical knowledge back then. We are only here on '09 forward. MR. FISHER:
Your Honor, Mr. Szymkowicz called
witnesses yesterday, Ms. Ipolito and the Hammetts, Mr. and Mrs. Hammett, to testify about the complete history of what happened; where this started. He has brought this
issue before the Court in terms of where it started.
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Further, Your Honor, there's a whole history of what has happened in this unit; has been made clear in this Court; has been brought up by Mr. Szymkowicz many times. One of the issues being discussed here today, whether the actions taken by Mr. Schuman's contractor or whatever he did in his unit later may have contributed or in some way disturbed the prior sealing that was done; so, that is clearly an issue in this case. MR. SZYMKOWICZ: sealing that they did. THE COURT: I don't think what happened back by Your Honor, we admit there was
GHI in '96, '97 is contested. Now, there is a punitive damages claim, as I recall, so the question goes to malice, but I don't think there's any allegation of malice in the earlier instance back in the 90's. MR. FISHER: There's another issue, Your Honor,
that I wish to approach the bench on that I think makes this testimony relevant. THE COURT: Okay. Come up.
(Whereupon, Counsel approached the bench and the following ensued.) MR. FISHER: a number of defenses. Your Honor, in this case, there are In this case, there's a number of statute of limitations
defenses that we are raising:
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waiver, the estoppel.
Those issues go directly to where
this started and whether or not he had the ability to bring the claim earlier and failed to do so with regard to the same issues that are present now. This goes directly
to the fact that these issues existed; then have existed for fourteen, fifteen years all the way through, which would go to the limitations waiver and estoppel arguments; so, it's clearly relevant to what the Defense has already put on. MR. SZYMKOWICZ: Mr. Schuman testified that it
stopped; it restarted in '08, '09. MR. FISHER: finder to determine. THE COURT: I'll allow a little bit. I simply That's, you know, for the fact
would concede there's no malice by GHI, so, at least, it's not an issue. MR. SZYMKOWICZ: THE COURT: The other thing, Your Honor --
And I have got a pretty good picture
of the history, at least up to this point. MR. SZYMKOWICZ: Somebody in preparing for this
case said, you could have somebody slap you on the back every morning like a bully; then one day decide you are not going to accept it anymore; so, every slap on the back of the head would start this statute running. MR. FISHER: Again, that's something he can
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determine later in this case, Your Honor, but I believe I need the opportunity to examine him a little bit. THE COURT: MR. FISHER: I'll allow a little bit. I'm not going to spend a whole lot
of time, Your Honor; make some accommodation. THE COURT: As he says, I don't think we'll be
here until Christmas, but we'll be here longer if we get over -MR. SZYMKOWICZ: Your Honor, they have Dr. Gots.
And Mr. Repace and Mr. Munzer, it's expensive to try this case for both of us. We have incentive also. The thing
with the evidence yesterday, we have been going down this road. There's no dispute. MR. FISHER: Your Honor, if we ruled, I think we
should get back to the issue. MR. SZYMKOWICZ: over with. We really want to get this case I didn't want to
Tactics to delay the case.
call Gretchen; now I have to. THE COURT: All right. Move on.
(Whereupon, Counsel returned to their trial tables and the following ensued.) MR. FISHER: THE COURT: Ready to proceed, Your Honor? One second.
(Off the record discussion ensued.) THE COURT: Okay.
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MR. FISHER: THE COURT:
Ready, Your Honor? Yes.
BY MR. FISHER: Mr. Schuman, again talking about the 1996 time
frame, you had brought to the attention of GHI that there was smoke infiltrating into your unit in specific locations that were disturbing you, correct? A. I don't know if I want to say "specific I would say in the entire unit, sure.
locations." Q.
So you were having smoke infiltration into your
unit which was bothering you; you wanted GHI to address it? A. Q. Yes. You first began contacting the Popovics about
trying to resolve it with them, correct? A. Q. A. Q. Yes, of course. That doesn't satisfy you? It didn't. Would you agree that the real heart of the
issue, in terms of the problems that you are suffering, actually originates with Mr. and Mrs. Popovic are the smokers? A. Q. Absolutely not. So you don't believe that the smokers are the
cause of the problem that you are suffering from?
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A.
The smokers are the cause of the problem.
I'm
sympathetic to Mr. Popovic. smoking culture.
I understand he grew up in a My main
I understand that he smokes.
frustration is with the cooperative because they didn't follow their own rules. Q. So let me -- you don't blame the Popovics who
are the smokers that are causing the smoke that is bothering you, correct? A. I do blame them, but Mr. Popovic has indicated
he would follow the directions to stop if the cooperative told him to stop. MR. FISHER: hearsay. THE COURT: party opponent. It could be an admission by the Objection. Move to strike. It's
I'll allow that.
BY MR. FISHER: Q. But you -- I believe that you were saying you That is what you are saying?
hold GHI more responsible. A. Q. I do, yes.
But you would agree that GHI was cooperative
from the time you brought this to them, right? A. Not in the current situation from 2009 to the
present, I would not say that. Q. Okay. Mr. Schuman, let's just make the record Back between 1997 and 2008,
clear so we can move on it.
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do you believe that smoke was coming into your unit from your next door neighbors? A. situation. Q. Not to the extent it was in the current It was not a problem for me during that time. Okay. Well, let's talk about when it was a You had a problem in 1997, correct?
problem before 2008. A. Q.
Around that time, yeah, sure. That problem lasted until the sealing of the
unit was done, until around 1998? A. problem. Q. Would you agree that the sealing of the unit That's not correct. The sealing did not fix the
helped to lessen the degree of the smoke coming into your unit? A. I would not. Absolutely not. That's what I
have been trying to say. Q. Mr. Schuman, do you recall testifying in this
case previously at a preliminary injunction hearing? A. Q. Yes. You recall testifying in deposition as well, is
that right? A. Q. Sure. In those situations, your testimony previously
indicated that the sealing of the unit helped but didn't solve the problem. Do you recall that testimony?
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A. Q.
It didn't solve the problem.
I agree.
And so you would agree that even though they
sealed the unit, the problem, helped to some degree, but the problem still persisted? A. No, wouldn't. That's what I'm trying to say.
The problem went away because the Popovics stopped smoking. Q. So you believe it was coincidental that GHI,
bringing in Martel Labs to check the work, the fact that GHI had sealed the unit under your request, was -- had nothing to do with the fact that you didn't suffer from smoke infiltrating into your unit? A. There's a lot of things in that question. First of all, with I'll
try to take them one at a time.
respect to the Martel report, I indicated, I think very explicitly, that that notice of the testing that was going to be done was given to all the parties in advance. The
report came back with the zero point zero reading, which is just not believable because the Popovics stopped smoking in advance of the report. Q. right. Let me stop you there. I think you are exactly
Martel Labs took a test in the unit and got a zero
point zero reading, right? A. Q. That's what the report says. And what they found was that there was no carbon
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monoxide that was in the unit at the time they did the testing, right? A. Q. That's what it says. And the testing was done during the day when you
were at work, right? A. Q. correct? A. Q. I don't know when it was done. You actually gave them permission to go into I wasn't home for the testing. It was, you believe, done during the day,
your unit because you were going to be at work that day? A. I don't know if I did or not. I probably did.
They have to have permission if they are going to enter. Q. correct? A. Q. I don't know if I did. I probably did. Okay. And you gave them permission to go in,
You would agree that Martel Lab was in your unit
to do testing? A. I presume they were. I don't think there's any
dispute about that. Q. Well, the testing was done during the day. You
know Mr. Popovic also smokes during the day, correct? A. day now. I don't know what Mr. Popovic does during the I assume he's at work. If he smokes at work,
that's up to him.
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Q.
But you would agree if somebody is not smoking
in their unit and nobody is home, there is going to be no record of smoke, correct? A. Q. That's my point. And you knew that back when you originally got
the Martel report from GHI back in 1997? A. I don't give any weight to the Martel report for
that reason. Q. But after you received the Martel report, you
didn't go back to GHI and question the fact that you wanted them to do more testing or do something further? A. That's exactly right, and the reason is because
the problem went away. Q. So it's your contention that the problem went
away because you believe the Popovics stopped smoking? A. Q. Yes, exactly. Just so we are clear, you believe that sealing
the unit in 1997 had no effect? A. I didn't say that. It may have had some effect,
but it didn't solve the problem. Q. And is it your contention that after 1997
through 2008, that you were still experiencing smoke infiltrating into your unit when the Popovics were smoking inside their unit? A. Yes, off and on.
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Q.
Were there specific locations in your unit where
you were experiencing that? A. Q. unit. Downstairs and upstairs. So behind you on the screen is a diagram of your The downstairs would be the kitchen area, the
dining area, the living room, correct? A. Q. A. Q. Sure. Okay. And the bathroom. And the bathroom. And you were experiencing
smoke in those locations, and I believe your testimony previously was that in the kitchen, which is the wall that adjoins -- adjoins the Popovics, you smell it most significantly? A. Q. A. I don't think I said that. Well, is that the case? It's very hard to characterize, anecdotal It was
fashion, exactly where the smell was strongest. throughout the unit. Q.
You indicated, at times, you would run your air
conditioner and close your windows to help alleviate the smell of cigarette smoke, right? A. Q. time? Yes. Did that assist in solving the issue at that
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A. Q.
Absolutely not. So even with running your air conditioner and
closing your windows, you still had some sense of smoke smell? A. Q. Yes. You indicated before that even with -- you don't
know what Mr. and Mrs. Popovic's smoking habits are inside their unit? A. Q. I don't. You don't know if they did, in fact, stop
smoking during the time period you indicated? A. I don't know when they smoked or when they
stopped other than, of course, I heard Mr. Popovic say he's not smoking now because of his wife's medical condition. Q. That's the recent history from Mr. Popovic
within the last year since the preliminary injunction hearing? A. He indicated at the preliminary injunction
hearing he's not smoking inside anymore. Q. But he never told you back in '98, '99, 2000 he
wasn't smoking? A. He has never told me at any point nor has
Mrs. Popovic. A. I believe they did indicate at the complaints
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panel that they were trying to cut back. Q. Mr. Popovic -- excuse me. Mr. Schuman, if you You recognize that
could look at Defense Exhibit No. 6. letter? A. Q.
It's November 14th, '96, Svetlana. That was the letter you sent to Svetlana
Popovic, right? A. Yes. MR. FISHER: Your Honor, I ask that Defendant's
6 be admitted in evidence. THE COURT: Any objection? No objection, Your Honor.
MR. SZYMKOWICZ: THE COURT:
It will be admitted.
(Whereupon, Defendant's Exhibit No. 6, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Q. Mr. Schuman, ask you to look at Defense Exhibit I apologize. Letter dated
No. 7 -- excuse me -- No. 8.
April 17th, 1997 to you from Greenbelt Homes? A. Q. A. I see it. Do you recall receiving this letter? Been a long time. MR. FISHER: I'm sure I received it.
Your Honor, I ask that Defendant's
Exhibit No. 8 be admitted?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
THE COURT:
Any objection to No. 8? No, Your Honor.
(Whereupon, Defendant's Exhibit No. 8, previously marked for identification, was admitted into evidence.) MR. SZYMKOWICZ: Again, Your Honor, we don't
deny that a Member Complaints Panel was convened, and this is irrelevant, and you know, it's going to delay our trial. MR. FISHER: Your Honor, that's why I'm moving
quickly to get these documents in evidence; talk about them later. No use to exacerbate it with Mr. Schuman.
For the reasons I indicated at the bench, these documents are definitely relevant to the case. THE COURT: Okay.
BY MR. FISHER: Mr. Schuman, I ask you to look at Defense
Exhibit No. 9, the letter you sent to Ms. Krob, who was the Member Services member from Greenbelt Homes that you sent a letter to regarding your complaints about the smoke, correct? A. Yes, it's Krob, I think, but, sure. MR. FISHER: Your Honor, I move Defendant's
Exhibit No. 9 into evidence.
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MR. SZYMKOWICZ: MR. POPOVIC: THE COURT:
No objection.
No objection. It will be admitted.
(Whereupon, Defendant's Exhibit No. 9, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Specifically, with respect to Defense Exhibit
No. 9, if you look down one, two, three, fourth paragraph, I believe you described specifically that "Smoke is present in the closet of my master bedroom and has completely pervaded all of my clothing," is that correct? A. Q. That's what it says. And your closet, looking at the diagram behind
you, would have been the wall adjacent to the bedroom here? A. That's the room you are talking about? I'm not sure if that's the official diagram of
the apartment, but if it is. Q. That is the layout of your unit generally?
That's how it's laid out? A. Not trying to be difficult. I don't know where The
this came from.
I have my copy of my unit layout.
master bedroom closet is on the second floor in the master bedroom. Q. Okay. So there's a blowup of the diagram. I'll
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just give you a paper copy that will assist you, but trying to ascertain so that this is the bedroom closet; there's actually only one master bedroom in that unit, correct? A. Q. The larger bedroom is the master bedroom. That's this one here that shows a walk-in closet
or larger closet here? A. Q. A. Q. I think that's right. Your unit is Unit Q? Yes. You also indicated in that letter that smoke is
present in both the first and second floor bathrooms, correct? A. Q. That's what it says. Okay. And you also indicated that you believe
that smoke was interfering with your ability to sleep, correct? A. Q. That's what it says. And that's the same actual complaint that you
are making now, that you don't have the ability to sleep when Mr. and Mrs. Popovic smoke? A. Q. Yes. Let me ask you, Mr. Schuman, do you believe they It bothers you, correct?
are still smoking inside the unit now, and that is disturbing your sleep?
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A. Q.
No. So why do you have any basis to support the
contention today that smoking is disturbing your sleep from Mr. and Mrs. Popovic? A. unit. Q. You just indicated that they are not still Sure, because the smoke is coming inside my
smoking inside the unit, correct? A. Q. That's right. And if your window is closed, how is smoke
getting into your bedroom? A. Because before I can run around and close all I also
the windows, the smoke is in the apartment.
understand the smoke to come in while the windows are closed. Q. So you believe that when the Popovics smoke
outside on their patio with your windows closed on the 2nd floor, that smoke is getting into your bedroom in the middle of the night to disturb your sleep? A. Whenever the Popovics are smoking, the smoke is
coming inside my unit from their outdoor smoking. Q. A. Q. What time do you go to bed in the evening? It varies. You indicated that you have been disturbed in
your sleep from their smoking as recent as within the last
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couple of months? A. Yeah, because I have had these medical I can't sleep. I wake up; feel nauseous,
conditions. headaches. Q.
You believe this is -- nauseous and headaches is
attributable to your next-door neighbor? A. Q. Certainly contributing to it. But you have no medical doctor that has
prescribed or has indicated to you, in any way specifically, that the secondhand smoke is causing you to wake up at night and feel nauseous? A. I have reports from Dr. Granite, my regular
physician, that say that the secondhand smoke has contributed to the problem. MR. FISHER: Your Honor, I move to strike.
It's hearsay at this point. THE COURT: the question. MR. FISHER: BY MR. FISHER: Q. Mr. Schuman, you have two experts that are Okay. You asked the question. He answered
testifying today, correct? A. Q. Yes. Assuming they are testifying today, sure.
You have Mr. Repace that is not a medical
doctor, correct?
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A. Q. A. Q.
Correct. You have Dr. Munzer, correct? Correct. Dr. Munzer, who is a physician as I understand
it, has never physically examined you, correct? A. Q. Well, you have to ask him. Well, have you submitted yourself to a physical
examination by Dr. Munzer? A. Q. of you? A. He has not; has looked at all my medical I have not. So he has not conducted a physical examination
records, though. Q. And so those are the medical records -- are
records that you produced for the first time to us within the last ten days, correct? A. Q. No, that's not correct. Okay. Well, we'll deal with that issue in a few
minutes, but, Mr. Schuman, I have looked at the medical reports that you provided, and there is no indication in any medical report that discusses that secondhand smoke causes you to awake at night. Are you telling me there's
a medical report that says that? A. Q. Yes, I am. Okay. Do you have that document that you are
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going to show us? A. We provided it to you for deposition for
Dr. Munzer. Q. A. Mr. Schuman -It's the last seven pages of the record of my
treating physician, Dr. Granite. Q. Mr. Schuman, what is the date that you went to
see Dr. Granite and he told you that? A. I have to look at those records. It was the
last two winter seasons when the Popovics were smoking indoors. Absolutely awful situation, and as I said in my
letters to GHI; said it in my letters to the Popovics. Q. So the medical records I'm looking at,
Mr. Schuman, which are provided by your Counsel, there's one dated February 19th, 2009 which appears for identification in Plaintiff's Exhibit No. 12. Plaintiff's Exhibits in front of you? A. I don't. MR. FISHER: THE COURT: If I may approach, Your Honor? Sure. You got the
BY MR. FISHER: Q. Mr. Schuman I'm going to show what you has been
marked previously as Plaintiff's Exhibit No. 10 for identification purposes. That's a medical record that you
submitted in discovery, correct, or actually ten days ago?
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A.
I don't know when that was submitted.
Doesn't
look like the complete medical report. Q. This is the document that you submitted, Patient
History Form, correct, and it's dated January 7th, Two Thousand -A. I'm sorry; not being difficult. I think they
are separated by pages; so, the records that I thought were relevant were the seven pages, I think, that are separated individually. Q. Okay. If you want to look and find the ones you
are referring to. A. All of these seven pages from the last two or
three years of seeing Dr. Granite. Q. Okay. This is Patient History Form, which is The only
marked for identification Exhibit No. 10.
indications I see on here was reasons for concerns for visit say, "best guess, sinus infection, two weeks," correct? A. Q. That's what it says. There's a note at the bottom that they circled, Grandparent had prostrate cancer? That's the
some History: A.
I think I would have circled it.
report I gave to the doctor. Q. With respect to Plaintiff's Exhibit No. 10, has
been marked previously, there is no indication on this
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document anywhere that indicates anything about smoking, is there? A. doctor's. Q. Nothing in there about smoking, the form that It's my form given to the doctor. It's not the
you filled out? A. about -Q. A. Q. Mr. Schuman, Mr. Popovic and GHI --- that I had to go see the doctor for. So it's your belief that smoking contributed to The sinus infection, that's what I'm talking
your sinus infection? A. Q. A. Q. Yes, absolutely. Are you a physician? No, I'm not. I show you what has been marked for This
identification as Plaintiff's Exhibit No. 10 (sic). is dated January 4th, 2008. A. Q.
Correct, Patient Notes for --
Looks like it, yes. Okay. And this has a bunch of handwriting on it
at the top.
It indicates, "cough, headache, et cetera."
That's what your complaints were at that time, correct? A. Q. These are Dr. Granite's notes, so, yes. Okay. And it indicates, if I can try to read
the doctor's handwriting?
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A.
"Congestion." THE COURT: MR. FISHER: What number is this? This is Plaintiff's Exhibit
No. 11. THE COURT: MR. FISHER: Eleven. Which was marked for
identification; not admitted at this time, Your Honor. THE WITNESS: drip, fever, chills. Q. right? A. Q. Looks right. It's your belief all these symptoms were caused Diarrhea, nasal congestion, postnasal drip, Yeah, nasal congestion, postnasal
by the secondhand smoke? A. Q. No, I said they contributed to it. You believe secondhand smoke caused these
symptoms or contributed to them? A. Q. I believe they contributed to them, yes. And you were prescribed Allegra D 24 hours, and Advil,
it looks like some other medicine, is that right? Robitussin were recommended to you? A. said. Q.
Yeah, it looks like that's what Dr. Granite
No indication on here anything about smoking
causing those conditions by Dr. Granite, is there?
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A.
I'm trying to read the rest of the writing here. I'm not feeling better by Wednesday,
Did not follow.
something, something else. Q. Follow up. I believe it's to follow up with
A. Q.
Follow up. There's no indication of anything in
Dr. Granite's handwriting about smoking caused these conditions? A. Q. I don't see it on this page though. Showing you what has previously been marked as
Plaintiff's Exhibit No. 27. A. I'll save you time. It's on the last page where
Dr. Granite summarizes these visits. Q. I'm going through these because they are
actually different dated documents? A. Q. That's fine. February 24th, 2009 document that has been
marked Plaintiff's Exhibit No. 13, correct? A. Q. '09, Exhibit 13, sure. Okay. And this was your visit, again, to
Dr. Granite presumably? A. Q. Yes, looks like that's Dr. Granite's form. Okay. And in this case, there's an indication
that you were prescribed Nasonex and Robitussin again,
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correct? A. Looks like. I can't understand exactly what
Dr. Granite would have separated -- but it looks like that's what he wrote in the medications column; so, I guess that's what he prescribed. Q. Again, on this document, February 24th, 2009,
there's no indication of anything having to do with smoking contributing to the symptoms that you went to see him for that day, correct? A. Q. A. I don't see smoking referenced on this document. Okay. Those are conversations I would have had with
Dr. Granite. Q. Okay. Showing you what has been marked as
Plaintiff's Exhibit No. 14 for identification, which is dated December 7th, 2009. You recognize that document as
part of the doctors notes that were provided to us? A. Q. A. Q. Yes. Okay. Sinus congestion, headaches. Hard to read.
Patient complaining of sinus congestion for
about five days, correct? A. Q. That's what it says. Okay. Makes some other notes about mucus
membranes, some other doctor scribbles that I can't make
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out; something to do with some shorthand, I'm sure. Dr. Munzer can interpret for us later. You were
prescribed amoxicillin or looks like amoxicillin, and there's no other notes indicating anything on this page? A. Q. smoking? Nasonex. No other notes indicating anything about There are no notes on this page indicating
anything about smoking? A. Q. No. Like I said, it's on the last page. That was
And this one is dated May 26, 2010.
the visit you made to? THE COURT: MR. FISHER: Number? That was previously marked I'm sorry.
Plaintiff's Exhibit No. 15 for identification. BY MR. FISHER: Q. Okay.
This document, you visited the doctor in
May 2010 complaining of poison ivy, right? A. Q. A. Q. Yes. Nothing to do with smoking? I'm not claiming that. Okay. On this page, which is Plaintiff's
Exhibit No. 16, dated September 13th, 2010, that would have been before the time you filed this lawsuit, correct? A. Q. Yes. And in this one, it's very interesting because
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this one is typed out, isn't that true? A. Q. It is. Okay. All the previous Patient Notes we just
looked at were handwritten by the doctor or nurse, correct? A. Q. That's correct. On this page, after this lawsuit is filed, there
is a paragraph that has been typed in by the doctor, correct? A. Q. A. Q. That's what it appears to be, yes. Did you prepare this? Absolutely not. I resent that.
I'm just asking the question here. And this one it says, "Patient in for
consultation."
So you went in on September 13th, 2010 not
because of any symptoms, but you went in to see the doctor for consultation? A. Q. I did. And the consultation that you went to see him
for, after the filing of this lawsuit, was to talk about all your prior visits to the doctor, which were about two respiratory infections, correct? A. Q. Yes, absolutely. And nowhere in this document does it say that
smoking caused the sinus infections or respiratory
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infections? A. to. Q. I don't believe it says that at all. I ask you No, it doesn't. I believe it says, contributed
to look at that document if you believe you can point to where it does? A. "I can only say I think it's possible that the
secondhand smoke he's experiencing is having an influence on his respiratory illnesses." Q. Is having influence on your respiratory
illnesses; doesn't say it caused them? A. Q. A. Q. No, I never claimed that. Okay. Secondhand smoke --
If you'll read the rest of it. And the secondhand smoke that he's talking about
was based upon your telling him about the fact that your next-door neighbor smokes, and you believe that secondhand smoke was contributing to your illnesses? A. I asked him whether secondhand smoke was
probably contributing to this, sure. Q. Indicates here that he does not smoke himself.
You are not a smoker, correct? A. Q. A. No. Has no history of asthma, is that correct? That's correct.
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Q.
And it indicates and I quote, "As he notes, he
gets his symptoms primarily in the winter," correct? A. Q. A. Q. A. Q. A. Q. A. Q. Yes. What type of heating do you have in your unit? It was only when the Popovics were smoking. Mr. Schuman? Medical records before that. Mr. Schuman, if you can answer the question? Fine. What type of heating do you have in your unit? Baseboard heating. You use the baseboard heating throughout the
winter, correct? A. Q. A. are open. Q. A. Q. Do you have a humidifier? I don't. Indicates also, quote, "We have seen him in the When it's cold, sure. Windows are closed? Sometimes the windows are closed; sometimes they
past in December and February," correct? A. Q. That's what it says. Okay. Okay. This indicates, "Objective:
External inspection ears and nose appear normal overall without evidence of lesions or masses," is that correct?
55
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 all.
A. Q. A. Q.
I wasn't in for an examination. That is what the document says? Yes. Says, "Otoscopic examination: Ear canals and
TMs normal," correct? A. was -Q. A. Q. That is what the document says, Mr. Schuman? Yes. "Inspection of lips, teeth and gums reveals no Like I said, I wasn't there for any symptoms. I
evidence of masses, lesions, obvious dental decay or gingivitis"? A. I'm not contesting what the document says at
Q.
"Examination of oropharynx is normal and without That's what I
evidence of masses, tenderness or exudate." see, if I pronounced that last one wrong. A. I'm sorry; which one did you read? That's what it says. Q. Okay.
Then the final sentence says,
"Assessment:
At the present time, he appears well."
So on September 13th, 2010, you appeared well apparently with no symptoms of any kind? A. Q. Exactly. "I can only say that it's possible that the
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secondhand smoke he's experiencing is having an influence on his respiratory illnesses," correct? A. Q. A. Q. Yes. After the lawsuit was filed? I talked to him about it many times. But we just looked at the prior patient notes;
no indication, anything about that discussion? A. That's correct. I didn't know I would need a
medical expert. MR. FISHER: pending. BY MR. FISHER: Q. So it's your belief that the smoking from your Mr. Schuman, there is no question
neighbors has influenced you, and you went to the doctor on two, maybe three occasions in the last four years for those issues, correct? A. Q. Yes. And you have complained that smoking has been
infiltrating your unit various times over the years since 1997? A. That's not what I'm saying. I'm saying that the
problem went away between the time we finished the first complaints panel process until roughly 2007, 2008, when I started having to go to the doctor again. Q. So are you saying that you believe there was no
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problem at all because -- this is important -- between 1998 and 2008? A. Q. I'm not. What are you saying about that time period about Was there any smoke
the smoke coming into your unit? coming into your unit? A. Q. A. Q.
Yeah, on rare occasions. When it came into your unit, did it bother you? Sure. Did you notify GHI, in writing, at that time
about those issue? A. Q. A. Q. Not until it became a rather big problem. But still a problem for you during that time? Yes. During that time it came and went, did you take
any actions on your own to try to address it? A. Q. I didn't. Did you ask Mr. and Mrs. Popovic at that time to
take any actions? A. Q. I probably did. The history with with Mr. and Mrs. Popovic, you
communicated with them in writing, correct? A. In the recent situation and in the formal
complaint process in the late '90's, yes. Q. Are you saying --
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A.
After following up after having oral
conversations that were not productive. Q. Are you saying between 1998 and 2008, you
changed your habits and decided to stop writing the Popovics on the smoking bothering you? A. I'm saying it wasn't a problem during that time,
so I didn't write to them. Q. You mentioned before that living in a
cooperative, there are certain things that you deal with. Barking dogs, I believe, is one of the things you mentioned, correct? A. Q. Sure. You understood when you moved into GHI, that it
was a community that allowed smoking in the units, correct? A. Q. A. Q. A. Q. I don't think I gave it a thought back then. But you know that's the case, correct? I understand that to be the case today, sure. It was the case back then as well, correct? I assume so, yes. You were aware there are communities that have a
no smoking policy that prohibits smoking in the units, correct? A. Q. I'm not really aware actually. I would hope so.
Mr. Schuman, didn't you testify earlier that
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your girlfriend's building is actually a nonsmoking building? A. Q. A. I don't think I said that. Is it a nonsmoking building? I don't know. I'm sure there are nonsmoking
buildings in the state. Q. A. Yours is not one of them? GHI's main administration building is smoke
free, as are most of the facilities in the City of Greenbelt. Q. correct? A. There's no rule against smoking in the But the residential units, themselves, is that
cooperative. Q. Have you ever sought to propose a rule to the
cooperative to pass a rule that there be no smoking in the units? A. Q. smoking? A. No, not at all. My intent is to have the Absolutely not. That's not my intent at all.
Your intent is to have the Popovics stop
Popovics' smoke not come into my apartment or onto my property. He can smoke forever if he wants as long as it
doesn't come onto my property. Q. It's your understanding today that there's
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nothing that can be done to prevent smoke from coming from the Popovics' property into your unit by taking any action to seal your unit or theirs, correct? A. That's not correct. Steps can be taken to
minimize the problem, but it will not eliminate the problem. Q. Some of those steps would be caulking and
sealing the openings between walls? A. that. I would like to rely on the expert opinion for What I have learned is that these steps are not
completely effective because if secondhand smoke is present, it's dangerous in any amount, and there's no amount of remediation, such as use of air filter, fan, sealing, that is going to completely remove that problem. Q. So between 1998 and 2008 when you lived in your
unit and had smoking there at certain times and not others, you didn't mind the fact that, apparently, from what you understand, that any amount of smoke was going to cause you harm? A. Q. I didn't know that until I read the 2006 report. Okay. And you read the 2006 report after
meeting with doctor -- excuse me -- Mr. Repace, correct? A. I think I read it shortly after. Probably was
suggested by Mr. Repace. Q. You are aware that smoking is not outlawed in
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the country, correct? A. It's certainly restricted in many locations.
Outlawed on airplanes, restaurants and bars. Q. Let me put it to you this way: They sell
cigarettes to people 18 years or older to people in the United States? A. As I said, I'm very sympathetic to Mr. Popovic's His ability to smoke, I wouldn't say he I haven't seen that anywhere. If
desire to smoke.
has a right to smoke.
he wants to smoke, that's fine.
That's his decision as Pretty simple
long as he doesn't smoke on my property. request. Q.
Not smoking on your property; having smoke come
onto your property? A. Q. Actually, his smoke is coming on my property. For a period of time, you have tolerated that
without making comments to GHI for the period of 1998 to 2008? A. Q. It was not a problem during that time. Since 2008, you believe something changed
significantly, I think was the word you used yesterday, and it became pretty bad pretty quick? A. It became a very big problem I think around the
2007 time frame, early 2008. Q. We talked to Mr. Gervasi yesterday, and that was
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the time frame in which he was doing work in your unit, correct? A. Mr. Gervasi did work in my unit, sure, but I
don't see how that has any bearing on the smoking outside. Q. bearing. you. I understand how you don't see how it has any Let me show you the diagram on the screen behind
Mr. Gervasi did work in various areas in your unit,
correct? A. Q. Sure. He first started with a complete renovation to
your kitchen, right? A. apartment. Q. Okay. And part of those renovations included, Yes. He did renovations throughout the
as you heard testimony yesterday, ripping out plaster; replacing it with drywall in the kitchen area, right? A. Q. Sure. It's your belief today that the most significant
areas in which you smelled the smoke was in your kitchen? A. I wouldn't say that. I would say when
Mr. Popovic smokes outside, my windows are opened, the smoke comes in through the kitchen, through the living room and through the upstairs bedroom throughout the unit. Q. Mr. Schuman, do you recall you exchanged some
e-mails with Mr. Repace, and you chose to put the nicotine
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monitor in your kitchen specifically because that's where you smelled the smoke the worse? A. the smoke. Q. correct? A. I wouldn't say the worst the kitchen. I smelled You smelled the smoke the worst in the kitchen, Mr. Repace told me to hang it where I smelled
it throughout the apartment. Q. I don't think it matters. Mr. Schuman, did there come a time as well when you replaced the through-wall air conditioner unit on your second floor? A. Yes. Actually, I replaced it, I think, within It failed. I had to get a new
the last couple of weeks. one. Q. A.
You replaced it with a smaller unit? I did. That's on the service side. Court's indulgence, Your Honor? I think I also replaced the
MR. FISHER: THE WITNESS:
downstairs air conditioner; lasted 15 years; finally broke. Q. located? A. On the service side. That's the opposite side Where was the downstairs air conditioner
from the side Mr. Popovic is smoking on.
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Q.
Would you say when the Popovics are smoking in
their unit, there's certainly locations in your unit where you smell it more than others? A. Q. I don't think they are smoking in the unit. When they are smoking outside the unit, did you
detect the smell in your unit at specific locations? A. Q. Sure. Downstairs, upstairs. What room would you be
Let's be more specific.
in when you smell smoke? A. bedroom. Q. And I believe that you have indicated, in your Kitchen, dining area, living room, upstairs
notes to Mr. Repace, that it was -- smelled in the downstairs bathroom, correct? A. Are you asking me now or are you asking me at a
certain point? Q. A. Now? Now I smell it throughout the unit when he
smokes outside. Q. Do you recall a comment to Mr. Repace when you
were having him do his report that you had him -- as you made note to him, that you smelled it in the downstairs bathroom? A. Sure. I don't think there was any area where
there wasn't the smell of smoke, if that will make it
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easier. Q. Do you recall telling Mr. Repace that, quote,
there's heavy smoke smell in the kitchen near the cabinet closest to the refrigerator; occasionally in the bathroom, and closet under the stairs usually on weekday evenings between 6:00 p.m. and 11:00 p.m., later on the weekend? A. I don't have it in front of me, but you know,
there's certainly no dispute about what I said in the e-mails to Mr. Repace. Q. So you would agree that's what you told him at
the time when he was preparing his report? A. That e-mail is accurate that you are reading
from, sure. Q. A. Q. A. Do you recall telling him that? Telling him what? What I just read? Let me approach. I just don't
I'm not trying to be difficult.
have the e-mail. Q.
There was lots of e-mails.
Showing you, Mr. Schuman, an excerpt from
Mr. Repace's report, an e-mail you sent him? A. Q. I'm sure it's accurate if it's in this report. So you don't contest the fact it's -- a heavy
smoke smell was in your kitchen near the cabinet closest to the refrigerator? A. No, not at all.
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Q.
That period, as indicated from you to him, was
March '09, April '09, which is also the testing period? A. That was the time I kept a daily smoke diary It certainly wasn't the only
because the instructions. time I smelled smoke.
Mr. Repace said, keep a record of the actual conditions while you are hanging the monitor so they correlate. Q. And in the previous letters to GHI back in the
late 90's, you complained about smoke in your bathroom as well, correct? A. I would have to see the letters. I think I
complained about smoking in many locations in the unit. Q. Showing, Mr. Schuman, if you could look at
Defense Exhibit No. 44 ? A. Q. I have it. Do you recall sending that letter to GHI back in
January of 2009? A. I do. MR. FISHER: Your Honor, I ask that Defendant's
Exhibit No. 44 be admitted. MR. SZYMKOWICZ: Your Honor, I object to that.
It's already admitted as Plaintiff's Exhibit No. 27, I believe, and after having done the record extract in the first appeal case, it's a nightmare having all these
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exhibits. MR. FISHER: into -MR. SZYMOKOWICZ: MR. FISHER: Already been. If it's already been admitted
So Plaintiff's Exhibit Number? Twenty-seven.
MR. SZYMKOWICZ: MR. FISHER: BY MR. FISHER: Q.
Okay.
Same copy of that letter is in front of you.
Just makes life easier for us. A. Q. Sure. Do you agree at the time you sent this letter,
that you believed that, quote, "This matter was brought before the mediation panel several years ago and resolved"? A. Q. A. Q. A. Q. Yes. You were talking about the'96, '97? Yes, I still do. Referring you to Defendant's Exhibit No. 49? I have it. It's a letter that Ms. Overdurff sent to you in
February of 2009 as a follow-up to your meeting with her on February 4th, correct? A. Q. Looks like it it is, yes. And as part of that meeting, you encouraged her
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to talk to Mr. Repace, correct? A. Yes. MR. FISHER: Your Honor, move Defendant's
Exhibit No. 49 into evidence. THE COURT: Any objection to 49?
(Off the record discussion ensued.) MR. GOECKE: We think it may be admitted already
as Plaintiff's Exhibit No. 10, but we are checking right now. Plaintiff's 31. MR. SZYMKOWICZ: THE DEPUTY CLERK: THE COURT: It's 31, Your Honor. Thirty-one, yeah.
Wait a minute. Defendant 49 is equal to
MR. SZYMKOWICZ: Plaintiff's 31. BY MR. FISHER: Q.
I'll refer you to the Plaintiff's 31, same
document in front of you? A. Q. Sure. It indicates, "At your suggestion, I spoke to Period. "During our
Mr. James Repace about this matter."
conversation, Mr. Repace indicated that while it may be difficult to completely block any penetration of either smoke or gases created by burning cigarettes, he recommended taking steps to seal all possible points of entry between units."
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q.
That's what that indicates, correct? That's what it says. You had previous conversations with Mr. Repace
about these points as well? A. Q. Sure. Do you agree this is something Mr. Repace
indicated to you as well as Ms. Overdurff? A. He indicated to me that it might reduce but
won't eliminate the problem. Q. She goes on to say, "Therefore, I'm writing to
follow up on the recent work performed by your contractor during the renovations to your kitchen and bathroom," correct? A. Q. Yes, that's what it says. So you understand and believe that sealing the
unit can assist in resolving but not eliminating the problem of smoke from your neighbors? A. Q. I understand it's not a solution to the problem. And you, in fact, believe you had Mr. Gervasi,
as part of his work, do everything that he could to caulk, seal, spray, foam, whatever, to help you with the problem in your unit during your renovations in 2008, 2009? A. But -- sure, I told Frank, do whatever you can
to help minimize the problem. Q. So you, in fact, even had your own contractor do
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work to try to minimize this problem? A. Q. Sure, of course. At that time, you believed that sealing could
help the issue? A. I believe we should try in good faith every
possible option to help eliminate the problem, but I understood it's not a solution to the problem. Q. But you are not an indoor air quality
specialist, are you? A. months. Q. No training in heating, ventilation, air I have learned a lot in the past couple of
conditioning? A. Q. believe? A. Q. But -- I'm sorry. What's the question? No. Just so we're clear. But that's what you
That's what you believe your statement was, that
you believe that it can help, but it won't solve the problem? A. To put it in stark terms, I don't see how it Renovations
addresses the outdoor smoke coming in at all. don't have any part of that. Q.
You are still seeking a permanent injunction
against Mr. Popovic to not smoke in his unit at all,
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correct? A. Q. Yes, I am. As well as a permanent injunction to have him
stop smoking on his patio? A. Q. A. Q. Yes. So Mr. Gervasi made attempts to seal, correct? Yes. Back in '97, '98, GHI made attempts to seal the
unit as well, correct? A. Q. Yes. Okay. You then sent another letter February I
26th, 2009. think it is.
Let me make sure it's not already in here. This would be Plaintiff's Exhibit No. 27,
already been admitted, but it appears, in front of you, as No. 50? A. Q. I have it. Okay. And in this letter, you disagreed, You want them to do
essentially, with GHI's approach.
something more than they have already done? A. Q. Yes. Isn't it true, Mr. Schuman, that you have
indicated to GHI, let's say, the present time, since your 2008 complaints, that you don't believe taking physical steps to making changes in your unit, such as sealing and what have you, is going to solve your problem?
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A. Q.
That's accurate. You have said, don't bother sealing. It's not
going to work. A.
I know it won't solve the problem? We tried I have
I didn't say, Don't bother sealing.
very hard, in good faith, every possible option.
come to understand those are not resolutions to the problem. Q. But they were responses to you. You had
Mr. Gervasi seal? A. No, they weren't responsive to me. That's the
whole point. Q. They were responsive in respect to understanding They
that you had a problem and you needed a solution? were responding to your letters, correct? A.
Well, the point is, they didn't follow the rules
through to the ultimate conclusion, which is giving me the full hearing that the rules would have required. it didn't enforce the rules that are in the Mutual Ownership Contract; so, I wouldn't say they were responsive, no. I tried very hard in good faith. I think at In fact,
some point, GHI tried in good faith, and ultimately told me, either suck it up or move, which is why I'm moving. Q. That's your interpretation of what they told
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A. Q.
That's what the letters say. If you can look at Defendant's Exhibit No. 52, Do you recall
which is a letter dated April 13th, 2009. sending that letter to Mr. Repace? A. Q. Sure.
And in this letter, you essentially lay out for
him the issues that you are having in your unit; describing for him kind of the factual situation that is going on, do you not? A. Q. The letter speaks for itself but, sure. You actually, I think, provided him with a diary
of some sort as well or you, at least, talked about the diary that you have? A. Q. The letter mentioned the diary, sure. And you indicated, in the last paragraph on that
first page, "As the diary reflects, the smell of smoke was heaviest at the kitchen cabinet nearest the refrigerator near the electrical junction box"? A. Q. A. That's what it says, yes. This was in the April 13th, 2009 time frame? Also says where the smoke is present in all the
other locations as well. Q. "Occasionally, there was a heavy smoke smell in
the downstairs bathroom," correct? A. Yes.
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Q. A. Q.
"And in the closet under the stairway"? Yes. "On these occasions, the smoke permeated the
apartment," correct? A. Q. Yes. "Seemed to be particularly bad most regularly
between 6:00 and 11:00 p.m. during weekdays and later on weekends," is that right? A. Q. That's what it says, yes. Goes on to say, "When my neighbors opened their
service side kitchen window, there was a heavy smoke smell on the common pathway leading to my apartment," correct? A. Yes, that was a real significant problem. You
could smell it just walking up to the unit. MR. FISHER: Exhibit No. 52. MR. SZYMKOWICZ: THE COURT: No objection, Your Honor. Your Honor, I move Defendant's
(Whereupon, Defendant's Exhibit No. 52, previously marked for identification, was admitted into evidence.) THE DEPUTY CLERK: THE COURT: Number 50?
Fifty-two. Fifty-two.
THE DEPUTY CLERK: BY MR. FISHER:
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Q.
Mr. Schuman, would you say that two visits to
the doctor in the last five years is an indication that you are pretty healthy generally? A. Q. A. Q. A. Q. No, it wouldn't. You are a runner, are you not? I am. How many miles a day do you run typically? None right now. Would you agree that your main complaint in this
case has nothing to do with the health effects to you? A. Q. No, I wouldn't. Okay. Has your belief changed over the course
of this litigation in terms of what you believe is the more significant issues involved? A. I wouldn't say that. MR. FISHER: BY MR. FISHER: Q. Do you recall testifying previously in this Court's indulgence, Your Honor?
case, before Judge Northrop, in a preliminary injunction hearing? A. Q. Do you not? Yes. And the issues that we were discussing then,
similar to the question I just asked you; you were asked the question, I quote, "As I take it from your testimony, that you do not intend to present any physician as part of
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this hearing or any other hearing that would testify to the fact that you have, in fact, or are suffering from health hazards associated with smoke coming from your neighbor's unit?" Answer: "I have thought about this. It's very
hard for me to document a medical condition.
I do have
medical records that indicate I had a" severe -- excuse me -- "a very severe respiratory infection the past two winters. of time. I had to take antibiotics for an extended period Can I say that's caused only by the smoke? Sure. No.
Can I say it was exacerbated by the smoke?
I would
be happy to produce those if you would like." Do you recall that testimony? A. Q. Yes. You also indicated that that's not -- "You don't
have a doctor here now that is going to tell us that your respiratory infection that you suffered, that you just talked about, was directly related to the smoking from your next-door neighbor?" Answer: "That's not my main complaint. My main
complaint, it is an intolerable situation. apartment.
I can't use my
I'm very concerned about the increased risk of It's
cancer and other problems as a result of this smoke.
not because I had some infection because of the smoke." Do you recall that testimony?
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A. Q. A.
Yes, that's absolutely true. That is still true today? That's my point.
That's my point.
My point, it's a carcinogen.
I can't use my apartment. Q. A. Q. You have not been diagnosed with cancer? No, I certainly hope not. As a matter of fact, in the report that we
referred to earlier when you met with Dr. Granite, he examined you and found no evidence of tumors, lesions or any indication of any adverse health effects you were suffering from? A. Reports speak for themselves. I didn't need a
medical report to prove an instance.
It's only after the
results of the preliminary hearing that I felt we needed a medical expert. You wouldn't get a medical expert for a barking
MR. FISHER: pending. BY MR. FISHER: Q.
Mr. Schuman, there's no question
You also testified at the preliminary injunction
hearing, quote, "The smoke was unbearable before and during and after the project," speaking about Mr. Gervasi's project. A. That's correct, is it not?
If that's what it says, sure.
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Q.
You testified earlier that you believe GHI is
more responsible than the Popovics to solve this problem. You believe that GHI somehow has the ability to stop Mr. Popovic from smoking or have him evicted if he doesn't, correct? A. Q. Yes. That's based on what you believe to be the
Mutual Ownership Contract? A. Q. Yes. So you believe that the association's bylaws and
the Mutual Ownership Contract is the sole basis of GHI's ability to do something that you, yourself, couldn't do other than going to Court, right? A. I wouldn't say it's the sole basis. It's
certainly the basis I thought provided me the course of action. Q. You also filed an injunction against Mr. Popovic
and Mrs. Popovic, yourself, have you not? A. Yes, that's because the cooperative said, don't Look to Mr. and Mrs. Popovic. Look to the
look to us.
Mr. Popovic said, Don't look to me. cooperative. Q. Really, the only solution, from your
perspective, was for GHI to step in and stop the Popovics from smoking because there's nothing they can do to your
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unit to stop the problem? A. It would be nice if Mr. Popovic took ten steps
or fifteen steps out to the common area, so his smoke didn't come into my property. efficient solution. Q. Again, you never proposed to GHI to take a That would have been a very
solution of changing the documents to adopt a rule that says you have to smoke 25 feet away from the unit, do you? A. Documents are perfectly fine. No changes needed
to the document. Q. A. Q. A. Q. nuisances. There's rules about barking dogs, is there not? I haven't checked. Well, there's rules that talk about -There's rules against nuisances, sure. Well, you keep talking about rules against It's the one provision you said in the Mutual
Ownership Contract? A. Q. Right. In your initial discussions with Mr. Repace, he
had you carefully document what you did with the nicotine monitor, did he not? A. Q. Yes. And he specifically told you, as part of that,
to make sure you followed the instructions specifically because if you end up in litigation, there's a chain of
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custody issue. A. Q.
Do you remember that?
No, he didn't say that. You don't recall an e-mail from Mr. Repace in
which he mentioned that to you? A. If it's in an e-mail, I'm sure it's correct. I
tried to follow the instructions perfectly. Q. What was the main purpose you had for getting
the nicotine monitor at the time? A. Because, as I said, many times I wanted to avoid Oh,
this back and forth argument about anecdotal reports. it's so bad; not so bad.
Oh, it's a little; not so little I wanted to
an amount in this room; not in this room.
document it scientifically and to avoid having these interminable discussions about how bad the smoke smell was. I wanted to establish concretely that Mr. Popovic's
smoke was in my apartment. Q. 69. A. Q. I have it. All right. October 17th, 2009, referred to If you could refer to Defendant's Exhibit No.
yesterday, Plaintiff's Exhibit No. 37. Do you recall looking at that document? A. Q. I recall looking at it, sure. And this was your letter to Suzette Agans, who
is the President of the GHI, correct?
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A. Q.
Yes. In this letter, on page two, paragraph two, you
again note, "Additional sealing has not solved the problem, and as I now understand, such efforts will not solve the problem," correct? A. Q. Yes. You also, what is numbered as Number Three in
that letter, discussed that you take offense to the fact that any belief that the renovations to your unit, in any way, have exacerbated on or contributed to the problem, correct? A. Yes. This stark example of that all the smoke
coming to Dory's apartment; Dory didn't do any renovations. Q. Ms. Ipolito's testimony yesterday will be
reviewed by the Court, but she mainly was concerned with smoke coming in through her screened-in porch and patio or in the recent time frame. But referring here specifically to what you indicate on page two, "My neighbors have recently indicated they will continue to smoke," correct? A. Q. Yes. "They have indicated they will replace an old
air filter and introduce odor consuming candles." A. Correct.
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Q.
So the Popovics, in their discussions with you
as part of the member review process, indicate that they were willing to take some efforts on their side to try to help, but they wouldn't quit smoking, correct? A. GHI this. Q. That was your understanding from the I don't think they ever told me this. They told
letters from GHI? A. After we got the notes from the meetings,
minutes from GHI. Q. It's in this letter where, essentially, you tell
the cooperative, if I can't get resolution, we are going to have to take legal action? A. That was basically begging them to find some
resolution so we wouldn't be here. Q. Do you recall my questioning of Mr. Gervasi
yesterday about the dust that created the mess in your unit? A. Q. Sure. Do you recall in December, do you recall in late
December 2009, exchanging some e-mails with Mr. Gervasi about that issue? A. I'm not sure of the date, but I did send some
e-mails to Frank. Q. Let me get you to the specific one here.
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A.
I think what happened is they forgot to put down
the drop cloth on the furniture; sawdust, whatever it was, landed on my furniture and printer; that was the end of the printer. Q. Showing you, if you look at the screen behind
you, this was an e-mail dated December 3rd, 2009 from you to Mr. Gervasi. A. Q. That the e-mail you sent to him?
Looks like it, yes. Okay. Specifically indicates that there appears
to be a bit of tile dust on everything perhaps due to cutting the tiles inside the apartment. It is especially
a problem for the electronics -- then you go on about -ask him that I appreciate the attention to detail on getting the cutting right, but don't want to sacrifice the components. You were worried about the dust? A. I think what it was, he had the tile cutter He was
center, if I'm not mistaken, in the living room.
cutting tile, so the tile dust flew up and landed on my printer, and that was the end of the printer. Q. A. Q. Created quite a mess? Yeah. I think I asked Mr. Gervasi this yesterday; just In December 2009 when they were doing their You
to clarify.
work, you were still living in the unit, right?
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didn't move out during that time? A. I think I was away for a week or two at some
point, but I generally stayed in the unit the whole time. Q. Actually, I just noticed in this e-mail,
December 3rd, Stopped in home tonight. December, I stopped in home on my way back to Rosslynn's. You were in town in this time frame? A. Looks like it, yes. Wasn't there when they were
cutting the tile inside. Q. home? A. Q. Unfortunately. Here it also indicates that, I guess, But you were there to find the dust when you got
Mr. Gervasi apologized for the mess and says, I really let my guys have it for sanding without covering; although, not too much of that happened. Removing the plastic
before the air releases dust floating in it is the main source for the dust, which we will clean Monday. Do you recall having that exchange with Mr. Gervasi? A. Sure. MR. SZYMKOWICZ: Your Honor, I object to this
kind of irrelevant -- whether there's dust; wasn't living -- he's not or he wasn't there at the time, and
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he's not complaining that it's a health hazard, and you know, it's not part of our case at all. MR. FISHER: Well, it is -what is part of
your case, though, is the fact that Mr. Schuman believes that the only cause of his going to the doctor had to do with the secondhand smoke. BY MR. FISHER: Q. Mr. Schuman, let me refer you back to the Four days after
medical documents referred to earlier.
this e-mail, you went to Dr. Granite complaining of sinus and respiratory problems, did you not? A. I just have to answer that by saying this was a
one-time event. Q. Mr. Schuman -MR. FISHER: I asked Mr. Schuman -- Your Honor,
if you would instruct the witness? THE COURT: Listen carefully to the question he
asks and answer that question. BY MR. FISHER: Q. Mr. Schuman, four days after this e-mail, you
went to Dr. Granite complaining of sinus and respiratory problems, did you not? A. Q. I have to see the date on that. Probably.
Showing you what was previously marked as
Plaintiff's Exhibit No. 14 for identification is the
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document you reviewed a short time ago. Doctor on December 7th, 2009, correct? A. Q. Yes. Okay.
You visited the
This e-mail exchange with Mr. Gervasi was
December 3rd and December 4th, 2009, correct? A. Q. Yes. Okay. So three or four days after you
complained of dust in your unit, you went to Doctor -- to Dr. Granite complaining of sinus congestion, did you not? A. Q. I wasn't there when the cutting was done. But you were there to find the dust when you
returned; stayed there that weekend, right? A. Q. Sure. They cleaned it up.
The Monday following; you sleeping in the home
that weekend? A. Q. Monday. Mr. Schuman, I asked you a question. You sent an e-mail to Mr. Gervasi; had an exchange with him Thursday and Friday, 3rd and 4th, about the dust in your unit? A. Yes. He indicated that his workers would be That's what it says. I think they cleaned it up right away. Mr. Gervasi's e-mail, they would clean it up on
back on Monday to clean it up. Q.
They actually came back in Monday or Tuesday?
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A.
I'm not sure when they came in; definitely not I don't know when it was. My
over the weekend.
recollection, it was right away. THE COURT: your Cross? MR. FISHER: break. THE COURT: break. THE BAILIFF: (Recess). BY MR. FISHER: Q. Mr. Schuman, I spoke to you previously about Court is in recess. Probably time to take midmorning Your Honor, if you want to take a How much longer do you anticipate
your retaining Mr. Repace to perform testing analyses in your unit, correct? A. Q. Yes. And Mr. Repace sent you a nicotine monitor to
put into your unit? A. but, sure. Q. And he didn't have you wear the nicotine I'm not sure if he gave me or sent it by mail
monitor, did he? A. Q. No. So the nicotine monitor was left in your unit
all day for a period of approximately 30 days, correct?
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A. Q.
Yes. During that period of time, you came and went to
work, is that right? A. Q. A. Q. Yes. You went to your girlfriend's presumably? Yes. You might have traveled for work during that
time period as well? A. Q. Yes. Although the nicotine monitor was in your unit
that entire period of time, you, yourself, were not in the unit the entire time the nicotine monitor was, is that right? A. Not 24 hours a day. I think the diary I kept
indicated when I was there. night. Q.
I think I was there every
And did you ever discuss with Mr. Repace the
idea of just wearing a monitor on your person to get a better sense of the actual exposure that you were experiencing versus that that was coming into your unit? A. Q. No, that would be ridiculous. Did you ever review with Mr. Repace why 30 days
was chosen as opposed to a week, for example? A. I understood that that is the accepted method
for making the measurement.
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Q.
And that's your understanding from reviewing it
with Mr. Repace? A. Q. Yes. Did you consult with anyone else other than
Mr. Repace with respect to nicotine monitoring in your unit? A. Q. I don't believe so. Okay. You didn't supply Mr. Repace with a copy
of the report that was done back in '97, '98 by the company that GHI hired, did you? A. Q. I think he has looked at it, yes. Did you supply it to him at the time you
contacted him? A. I don't remember when I gave it to him. I don't
think I gave it to him at the time I hung the monitor. Q. How much do you pay GHI a month for your
maintenance assessment? A. I don't think it's broken down that way. I would
Monthly cooperative fee I think is about $530.00. have to check it. Q. A. $530.00 a month approximately?
Yes, including property taxes, and maintenance
and garage rental. Q. No. 37. If you could refer to Plaintiff's Exhibit Actually, if you have 37 in front of you, do you?
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Let me grab that for you? MR. SZYMKOWICZ: MR. FISHER: THE WITNESS: BY MR. FISHER: Q. A. Q. A. Q. That's a letter you sent to Ms. Agans, correct? Yes. President of the GHI? Yes. Okay. I'm just going to look at the hard copy, That was the letter, October 19th, or Jason, 37?
Plaintiff's Exhibit No. 37. I see it.
if you don't mind.
October 17th, 2009 that you sent to her? A. Q. Yes. And in that letter, you start off by thanking
her for her response "of October 8, 2009 providing the decision of the Board of Directors with respect to my complaint about secondhand cigarette smoke per my neighbor's unit 11R"? A. Q. Yes. In that letter, you go through the reasons why
you believe that GHI hasn't fully understood the concerns that you have, right? A. Q. Yes. Nowhere in this letter did you ask GHI to do
further sealing in your unit, correct?
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A. Q.
That's correct. You didn't ask them to put in HEPA filters in
your unit or Mr. Popovic's unit, did you? A. Q. That's correct. As a matter of fact, you don't believe any of
those resolutions will solve the problem today? A. Q. That's correct. Mr. Schuman, between 1997 and 2008, there were
times when the smoke that came into your unit was, as you put it at your prior testimony, preliminary injunction hearing, was awful, correct? A. Q. Yes. And I think you also indicated that while at
sometimes it was awful, sometimes it wasn't so bad during that time period, is that right? A. I don't think I said it exactly that way, but it
wasn't the severity of the problem that I encountered in 2007 and 2008. on, for years. Q. A. Q. A. Q. And you have been living next to them for years? Yes. Many years as a matter of fact? Sixteen. I don't think it makes it right. The Popovics have been smoking, off and
I refer you to what is in front of you, If you could turn to that
Defendant's Exhibit No. 73.
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document? A. Q. I have it. This has previously been admitted as Plaintiff's
Exhibit No. 40, but for ease, I'll have you refer to the one in front of you. Exhibit No. 40 is a letter that you received from Gretchen Overdurff following your letter of December 1st of the same year, correct? A. Q. Yes. Okay. And this is in reference to the previous
letter from Ms. Agans of October 8th, correct? A. Q. I think so. There's a reference, second paragraph, talking
about President Agans' response to you? A. Q. Yes. In this letter, it indicates, "GHI is not a You agree with that?
smoke-free community." A. Q.
That's what it says. Also indicates, from Ms. Overdurff, that "formal
hearing is only possible after the second step is taken, that of an informal hearing." You see that? A. Q. I do. Also indicates, "In the October 8th letter, the
Board has stated its position and firmly believes any
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resolution must come from those directly involved." Do you see that? A. Q. I do. "The Board regrets there's nothing more it can That was a letter you
do for you regarding this matter."
received from GHI December of 2009, correct? A. Q. Yes. Did you understand from GHI, at that time, that,
essentially, the process with them, from their perspective, had been exhausted in terms of what they could do to address your issues? A. back. Q. A. Q. A. Q. I think I sent one more letter; got one more Maybe this is the final letter. About that time frame, you understood -Yes. -- that was as far as GHI, they believe -Yes. It was a short time after that that you took
action to file this lawsuit against Mr. and Mrs. Popovic, correct? A. Q. A. Q. Against both parties, yes. Against GHI as well? Both parties, yes. Refer you to Defendant's Exhibit No. 69, which
is the October 17th, 2009 letter we looked at a short time
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ago from Ms. Agans to you which is also Plaintiff's -let's see here -- 37, which has been marked but not admitted at this point. A. Q. A. Q. October 17th. 2009? I have it. Which is in front of you at this time,
Defendant's Exhibit No. 69 which is marked for identification? A. Q. Yes. Okay. That's a letter that you sent to
Ms. Agans, correct? A. Q. Yes. The last sentence in the first paragraph
indicates that, "I respect the Board's decision," correct? A. Q. Yes. You respected the Board's decision with respect
to what they had done, but you disagreed with that decision, is that right? A. Q. I was trying to be polite, yes. You understood it's the Board of Directors for
GHI that makes the decision with respect to what action they will or will not take against any specific member with respect to their occupancy in the unit? MR. SZYMKOWICZ: Objection, calls for a legal
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conclusion. THE COURT: MR. FISHER: understanding. BY MR. FISHER: Q. A. Q. You have a contract with GHI, do you not? I do. Is it your understanding, under that contract, Sustained. Your Honor, what his belief was,
that the Board of Directors makes decisions for GHI with respect to the members' rights? MR. SZYMKOWICZ: But, Your Honor, this -- we
have always had a problem on this issue; what is the final answer on this thing. I don't even know if it's been
resolved right for you. THE COURT: I have let him testify both on
Direct and Cross as to his belief. If that's your belief, you can go ahead. THE WITNESS: I was trying to find out, in fact,
whether that was the final position; whether I had exhausted all of my options, and that was my understanding. cooperative. I think I sent one or two letters: sure? Are you I had exhausted all my options with the
Are you really sure, because I really didn't want
to be here.
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Q. A.
Essentially, you didn't like what they decided? That's right. I don't think they followed the
rule correctly. Q.
It's not just I didn't like it.
I refer you to Plaintiff's Exhibit No. 20, which If I can approach
is previously admitted into evidence.
you, probably a little easier than trying to pull it up on Mr. Szymkowicz's i-pad. I'm not as talented as he is.
Showing you what has been marked and admitted as Plaintiff's Exhibit No. 20. Contract with GHI, correct. A. Q. Sure. Okay. And I'm referring you to page eight in You recognize -- you see this This is your Mutual Ownership
the highlighted portion.
paragraph here, which is subparagraph ii, subsection c on page eight? A. Q. I see it. You see what the title of that section is that I
have highlighted there? A. It's under the Termination of the Contract by
GHI for Default or for Cause, and subsection is, Failure to Comply with Contract, Rules or Bylaws. Q. So it's essentially this provision of the GHI
Mutual Ownership Contract that you believe is applicable to GHI's action that they should have taken to terminate the Popovics' ability to occupy their unit if they didn't
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stop smoking after GHI would have ordered them to stop presumably? A. I'm having difficulty. I haven't read the What you rely on
entire Mutual Ownership Contract.
primarily is the nuisance clause, the sentence that followed from determining it's a nuisance; after that, I'm not entirely sure. detail. Q. But this is the contract that you have been I would have to look at that in
discussing this entire time? A. Sure. My understanding, once they find it to be
a nuisance, they have to take steps to get rid of it. Q. A. Q. Presuming they find it a nuisance, correct? Yes. At your preliminary injunction hearing, do you
recall testifying that, at that time, you had no intention to move out of GHI and didn't have a buyer to -A. Q. A. Q. If that's what I said, I don't dispute it. Well, your property wasn't listed for sale? It wasn't. As a matter of fact, you didn't list it for sale
until when, two weeks ago? A. Q. Couple of weeks ago. Okay. And you testified that you have listed it
with a real estate agent; I believe you said?
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A. Q.
Yes. They have it posted on their websites
presumably? A. Q. Couple of websites, sure. I believe you indicated also to the Court
yesterday that in listing it for sale, you have had the real estate agent specifically note that you live next door to a smoker and that the smoke gets in your unit? A. detail. It's on the website, yes; well, not in that I think there is one sentence that the seller is
selling because of the presence of secondhand smoke from a neighbor. Q. You specifically instructed your real estate
agent to put that with the listing? A. Q. A. Actually, he recommended it to me. And you agreed to do that? Yes, but I didn't list it on the website. He
Q.
There's no -- as I believe the Court took
judicial notice of yesterday, there's no specific legal requirement that you have to disclose that. understand that? A. With all due respect to Judge Northrop, the Do you
research I did, disclosed at least one case; not a Maryland case; where the realtor sued for not disclosing
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secondhand smoke; was unsuccessful by the buyer.
To me,
it indicated it's something I should disclose, and the realtor suggested that I put it on the website to be up front. MR. FISHER: Your Honor, I move to strike what
his real estate agent -THE COURT: There's no statute in Maryland that
requires that disclosure. BY MR. FISHER: Q. But you agree, to this day, have maintained that
statement on the listing of your property? A. yes. Q. A. Q. So any potential buyer would see that statement? Yes. Don't you believe that that statement, itself, It's on the website for the individual property,
may cause a buyer pause in terms of -A. Absolutely. Just like I spoke to more than one
real estate agent; what I learned was if a prospective buyer that comes along smells smoke, is just going to walk away. Q. Mr. Schuman, my question to you was: Don't you
believe that putting that statement specifically on the website will deter potential buyers from even considering your property?
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A. believe. Q.
Yes, that's the whole point.
That's what I
Mr. Schuman, at the preliminary injunction
hearing, do you recall when that was? A. Q. I don't exactly. About a year ago. About a year ago at the
preliminary injunction hearing, at that time you testified that with the renovations that you performed to your unit, you believed, at that time, your property was worth somewhere between two hundred fifty and $300,000.00? A. Q. That's probably accurate. Okay. You listed your property for sale today
at 256,000? A. Q. A. Q. what year? A. Q. A. Q. December '95. How much did you pay for it then? About seventy-three. I believe you testified at the preliminary Two fifty-nine. Two fifty-nine? Much to the dismay of my real estate agent. You listed it -- excuse me. You purchased in
injunction hearing, as well, that you recognize that the real estate market in the last year or so hasn't been the best economically?
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A. Q.
It's the worst. So you would agree that right now we are in a
down real estate market, would you not? A. I'm hoping -- it's good for buyers, but it's not
good for sellers. Q. What did your -- I think you mentioned your real Who
estate agent was dismayed at the listing price. picked the listing price? A. Q. I'm sorry?
I believe you said that your real estate agent
was dismayed, I think the word you used? A. Q. A. Yeah, he thinks it's way too high. Why does he think -That you have to ask him. He said if I wanted
to get any offers, I would have to list it for under two hundred. Q. A. Who is the real estate agent? Leonard Wallace, W-A-L-L-A-C-E. His office is
in the Center of Greenbelt; asked to talk to Sandy Holstein, another real estate agent. MR. FISHER: THE COURT: MR. FISHER: need one minute. BY MR. FISHER: Court's indulgence, Your Honor? Yes. Your Honor, I may be done. I just
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Q.
Mr. Schuman, if you could refer in the notebook
to Defendant's Exhibit No. 25? A. Q. A. Q. Have it. Do you recall receiving that letter from GHI? A long time ago. I'm sure I did.
And included or attached to that letter was also
enclosed the Martel report, which appears as Defendant's Exhibit No. 22? A. Q. I'm sure it was. Okay. If you could look at Defendant's Exhibit
No. 22 as well. Q. Do you recall receiving that document with the
cover letter from GHI? A. I do. MR. FISHER: Your Honor, I move Defendant's
Exhibit 22 and 26 into evidence. MR. SZYMKOWICZ: MR. FISHER: THE WITNESS: relevant. MR. SZYMKOWICZ: MR. FISHER: 26? You were asking about 25. Thank you. 22 and 25?
22 and 26, Defendant's Exhibits. Again, I don't think it's
I'm sorry, 25.
THE DEPUTY CLERK: MR. SZYMKOWICZ:
26 is already admitted. We have no objection to 25. It's hearsay.
We do have an objection to 22.
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The people that created this are not here.
You know, I
think that Mr. Schuman attested there's no possible way that this could be a true report; therefore, it should be excluded. THE COURT: Whether or not he believes it's a
true report has no bearing on its admissibility. It's hearsay. MR. FISHER: Yes, Your Honor, for purposes of At that
notice, I would ask that this Court admit it.
time, as Mr. Schuman testified to, he received the November 25th cover letter from GHI along with this enclosed letter, which he just testified he did receive; so, not with respect to the truth of the matter stated in that document but with respect to the fact that he did receive this document, and this was -- this was the understanding he had from the Martel Labs; whether the statements are true or not, something different; for purposes of notice, he did receive it. THE COURT: For purposes of notice, I can accept He's acknowledged it.
on the record that he received it.
I'll also note that he has, in testimony, given its findings. What value they may have or weight of that is
something to be determined; otherwise, it's still hearsay. I'll sustain the objection to No. 22. 25 is in.
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(Whereupon, Defendant's Exhibit No. 25, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Exhibit No. 22, which is the Martel report, you
reviewed that at the time you received it, correct? A. Q. I did. As you have testified to, as Your Honor has
noted, you disagree with what the report said? A. Q. I do. Following the receipt of the Martel Lab report,
you took no action on your own to do any further testing in the unit at that time? A. Q. A. I didn't. But you could have? I think everybody was working in good faith to
try to figure out what the problem was and try to resolve it, and it turned out the problem went away. MR. FISHER: THE COURT: No further questions. Mr. Popovic. CROSS-EXAMINATION BY MR. POPOVIC: Mr. Schuman, you began this morning with Let's continue there.
yesterday's evening.
What did you say I did last evening?
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A. smoking. Q.
I believe you were outside on your patio
Yeah.
Did I do anything illegal or secret or
prohibited? A. Q. A. Q. A. Q. Yes. Whom -By you -- you created a nuisance for me. No, I'm not asking -Carcinogenic material. Mr. Schuman, I'm not asking that. I'm asking
you, did I do something illegal? A. Q. Yes, in my opinion you did. In your opinion. Is there any law against
smoking or ban or prohibition? A. Q. Yes, there is. At this moment? MR. FISHER: legal conclusion. THE COURT: Are you aware of any law against Your Honor, I object. Calls for a
smoking on his property? THE WITNESS: Not on your property, no.
BY MR. POPOVIC: Q. A. Q. Yeah. I didn't smoke on your property?
Actually you did. I didn't.
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A. Q. A. Q.
Well, your smoke is coming. Do you know how much I stayed outside? I don't. You don't; so, I could have stayed three minutes
or 33 minutes? A. Q. A. Q. I don't know how long you stayed. Do you know how much I smoked? I don't know. So I might smoke one cigarette or ten
cigarettes? A. Q. I don't know how much you were smoking. Mr. Schuman, do you agree with your expert's
opinion that danger from secondhand smoking depends on distance from the smoker and which way the wind is blowing? A. I agree that the effect of secondhand smoke is
correlated with distance. Q. A. Q. Yeah, and what about wind? I'm sure wind affects it. -- Mr. Repace's report that the wind affects it, There is --
and if the wind blows in the opposite way, then even one foot is enough; it's not dangerous? A. Q. A. I wouldn't say that, no. But -- well, is that what Mr. Repace said? He didn't say one foot is not dangerous.
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Q. A. no wind. Q.
He said if -- it doesn't matter -Your smoke comes onto my property when there is
Did you check which way the wind was blowing
last evening? A. I didn't because your smoke comes onto my
property without any wind. Q. A. How do you know that? I can experience it. Anybody that comes in my
house can experience it. Q. How could you experience standing 30 seconds
outside the unit? A. Q. I can smell it. Anyone can smell it.
Mr. Schuman, do you agree that in your expert's
report, it says that the wind blows from Popovic's unit to Mr. Schuman's twenty-eight percent of the time? A. Q. Yes, I agree. That's what it says.
So is it correct to say that sixty-eight percent
of the time, you can enjoy your garden because the wind is blowing a different direction? A. Absolutely not. That's what I'm saying. When
there's no wind and you are smoking on your patio, your smoke comes onto my property; comes into my windows. Q. But twenty-eight percent of the time, the wind
is blowing in the opposite direction?
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A.
I'm not saying it's not dependent on the wind at There's zero wind, and your smoke comes into my
property some. Q. Mr. Schuman, says that twenty-eight percent of
the time -A. Q. I'm not disagreeing with that. -- it's blowing -- you don't agree with your
expert's -A. I agree with what it says that the percentage of That's not the only time your
the time the wind blows. smoke is coming in. there's no wind. Q. A. Q.
Your smoke is coming in mostly when
How do you know when I smoke how much I smoke? I can see you. You could see me yesterday. You saw me and went
inside, and you said that you don't know how much I stayed outside? A. Q. A. Q. A. Q. That's true. So I might get -- stayed three minutes? You might have. Smoked half a cigarette? You might have. That half of cigarette penetrated to all the
rooms in your unit? A. Absolutely. What I'm saying, as soon as you
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start to smoke, the smoke comes on my property. smell it almost instantaneous. I'm not trying to be difficult. conditions. same way. Q. letter.
I can
These are the
Anyone that is there can experience them the
Now, Mr. Schuman, let's go to that famous It's, I think, mentioned many times here. It's
Exhibit No. 23? A. Q. Of whose exhibit? Yours. Is that letter, "I wish you Happy New
Year" and "past several weeks." MR. FISHER: believe. Plaintiff's Exhibit No. 23, I
What's the date on that letter? THE COURT: January 4th, 2009.
BY MR. POPOVIC: Q. A. Q. paragraph? A. "Over the past several weeks, on occasion, January 4th, 2009, is that correct? I see it. Could you read the first sentence in the second
cigarette smoke has been entering my apartment from the side closest to your unit." Q. Thank you. It says, Over the past several It doesn't say over the past It doesn't say that?
weeks, occasional smoke.
several years or over past 13 years.
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A. Q. and 2009? A. Q. A.
It doesn't. So, Mr. Schuman, what was going on between '97
I didn't have this problem. Why didn't you have the problem? I don't know why I didn't have it. From what I
gather, your smoking patterns changed because of your wife's medical condition due to her high blood pressure. MR. FISHER: Objection, Your Honor. Calls for
speculation; lacks foundation. MR. POPOVIC: Poor speculation.
BY MR. POPOVIC: Q. Mr. Schuman, do you have any proof of your
changing of smoking? A. Your suggestion is because I have put up with
occasional smoke from your unit, that I should now put up with it. Q. I reject that a hundred percent. Do you have any proof that we changed our
smoking habits during those 13 years or it's just your wishful thinking, Mr. Schuman? A. It's my experience that I did not experience
smoke infiltration. THE COURT: I think the question is: Do you
have any proof that they stopped smoking during that period of time?
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THE WITNESS:
No, just your indication that you
stopped recently at the preliminary injunction hearing. BY MR. POPOVIC: My indication covers the last year-an-a-half,
but not period between '97 to 2009. THE COURT: Ask him a question.
BY MR. POPOVIC: Let's go to Exhibit No. 29, David Schuman's
letter dated February 2nd, 2009. MR. FISHER: was already admitted. THE WITNESS: February 2nd, '09. Plaintiff's Exhibit No. 29, that
BY MR. POPOVIC: That's correct. It says that "Over the past two
weeks, I have not been able to sleep at night; am experiencing frequent headaches." And what do you think
changed between January 2nd and February -- January the 4th and February the 2nd in the first letter? It was
occasional smoke last couple of weeks; now, after one month, it becomes intolerable and very dangerous. can't sleep, and you have other problems. What happened during those four weeks? A. You guys weren't addressing the problem, and it You
What changed?
was still there, and it was causing me a lot of pain and suffering. That's what I was trying to say.
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Q.
But in the first letter, it was occasional
smoke; in this letter, four weeks later, it's a very dangerous situation? A. Q. Yes. You want to say that we doubled or quadrupled
our smoking? A. issue. Q. You brought our attention with the first letter, Trying to get your attention to help resolve the
and the measures were GHI was doing something. And, Mr. Schuman, you don't have any proof about our smoking habits? A. Q. I don't other than what I have seen. So you cannot explain why you didn't suffer from
cigarette smoke during those 13 years? A. Q. A. Other than you weren't smoking outside as much. Yeah, but it's a wishful thinking, Mr. Schuman. That's what I saw; so, you decided not to smoke
inside and only smoke -- until you decided not to smoke inside; only smoke outside. MR. FISHER: THE COURT: Objection. Calls for speculation.
It's what he observed.
BY MR. POPOVIC: Q. Mr. Schuman, I haven't seen any medical proof of Among other things, you
your condition when I'm smoking.
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put on the list all your visits to your eye doctor, your ophthalmologist, for contact lenses, that sort of thing. You wear contact lenses? A. Q. A. Q. I don't. You don't? No. So why did you go to the ophthalmologist about
contact lenses? A. Q. A. Q. I used to wear contact lenses. You used to wear. I don't wear them. Now, Mr. Schuman, question of choice. As a You don't wear it?
nonsmoker, would you agree that you have choice to choose place where you would like to live? A. Q. Yes. You can go to nonsmoking community or you can go
to smoking community if you prefer? A. Q. I have a choice. And what about smokers? Do I have a choice
where I should go? A. Q. A. Q. community. I certainly -If not in smoking community? I certainly hope so. So I'm doing that. I'm living in this smoking
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A.
It's only a smoking community.
On my
property -Q. The community smoking, and you have nonsmoking
communities all over the place, but nonsmoking apartment buildings where the people who is bothered so very much as you by smoking are living? A. If you are telling me because you are smoking, I
have to move out, I reject that a hundred percent. Q. No, I'm not. My question was, what is the
choice of the smoker, where he could live? A. Q. You can live wherever you want. No, I can't. Would you agree that I can't live
in a nonsmoking community? A. Q. A. You can live wherever you want. In a nonsmoking community? You can live wherever you want. MR. POPOVIC: THE WITNESS: Okay, Mr. Schuman. Thank you. Your Honor, I have very, very Thank you.
MR. SZYMKOWICZ: few questions.
We can get rid of this. Sure. Your Honor, I move the
THE COURT:
MR. SZYMKOWICZ:
admission of Exhibits 10 through 16, which were addressed by Mr. Fisher. They are the medical records. We hadn't
planned on introducing them.
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MR. FISHER: documents are hearsay.
I do object, Your Honor. I would like to have --
Those
Mr. Schuman testified about what he discussed with his doctor, and the testimony you have already received in evidence is fine, but the documents, themselves, are hearsay and not admissible. MR. SZYMKOWICZ: MR. FISHER: Your Honor, I think that --
I can use documents that are Doesn't mean
hearsay documents to impeach the witness.
the documents, themselves, come in as evidence. THE COURT: I understand. Your Honor, I think that these,
MR. SZYMKOWICZ:
while they may be hearsay, you know, I think they should be admitted, because there's no indicia that they are not reliable. They were used. In fairness, they were used by I think
Defendants to, presumably, impeach the witness.
we have a right to have them introduced because they were referenced. We didn't object to them referring to them,
but since they did, it opens the door for them to be introduced into evidence. THE COURT: No. Once again, as was stated, they They were not
were used for impeachment purposes. offered. They are hearsay.
There is a provision in the
Maryland Rules that would permit them to be admitted with a custodian of records. Here we don't have that
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custodian, so that provision was not chosen. not -- who is the other doctor, Doctor -MR. SZYMKOWICZ: THE COURT: No. Munzer. Granite.
Whether or
Whether or not they come in from
him, I don't know yet, but at this point, I'll sustain the objection. MR. SZYMKOWICZ: Okay.
REDIRECT EXAMINATION BY MR. SZYMKOWICZ: Q. Did the Popovics smoking from 1997, or '98 to
2007, in your opinion, rise to the level that you believed would seriously affect your use and enjoyment of your property? MR. FISHER: Objection, as to the legal
conclusion with respect to interference with use and enjoyment of his property. case. THE COURT: Rephrase. I'll sustain it. Legally defined term in this
BY MR. SZYMKOWICZ: Q. Do you believe you had a reason to bring a case
against the Popovics or GHI prior to 2007 because of the Popovics smoking? MR. FISHER: Objection, Your Honor.
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THE COURT: THE WITNESS: 2007 or early 2008.
I'll allow it. It wasn't a big problem until late
I could reasonably use my property.
When smoking habits changed and Mr. Popovic started smoking outside more frequently, this is a big problem as well as the smoking inside; something I couldn't live with. It wasn't the extent. It wasn't the magnitude
during that intervening time. This is just ridiculous to me that I lived with this problem for 15 years, and then decided, oh, you know, it's a big problem. Q. I better take some action.
Do you have knowledge of any other condominium
associations that took action to force a smoker not to smoke? MR. FISHER: THE COURT: Objection, Your Honor. Sustained. Your Honor, this goes to the
MR. SZYMKOWICZ:
standard of condominium associations; what duties they have. THE COURT: Hearsay. Well, he may have known if they
MR. SZYMKOWICZ: took action. THE COURT: action taken? THE WITNESS:
Were you there personally to see
Well, I was in Court to watch.
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THE COURT: MR. FISHER:
Hearsay. Objection. Your Honor, I think that it
MR. SZYMKOWICZ:
THE COURT:
Sustained. I have no further questions.
MR. SZYMKOWICZ: THE COURT: MR. FISHER: question, Your Honor.
Any recross? One question, or maybe one
No, Your Honor, I'll withdraw. THE COURT: Anything else?
No questions.
If I may, got these two pictures. the pictures? THE WITNESS: THE COURT: garden side. Yes.
Did you take
This is Plaintiff's 1, which is the
Do you know when you took that picture? I think it was prior to the
THE WITNESS: preliminary hearing. THE COURT: THE WITNESS:
Do you know what time of day? I don't, Your Honor. Judging from
the light, it was probably in the shadow.
It was probably
in the morning because the sun comes up on the east side, and I would have taken that, I think, when you could see clearly, is my best guess. THE COURT: You'll correct me if I'm wrong; I
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believe you said earlier, out of courtesy and respect, if Mr. Popovic would take ten or fifteen steps away to smoke, that might help alleviate things? THE WITNESS: I would certainly like to try. I wouldn't want to
I'm not positive on the distance.
commit to an exact number until we tried it, but the common area, the large oval common area, which is right outside our property area, is a huge common area, and it's certainly conceivable to me, if he took a few steps onto that common area far enough away that the smoke wouldn't come in. THE COURT: service side? THE WITNESS: THE COURT: Garden side where he smokes. On the service side, that's where Common area on the garden side;
you would drive your car or whatever? THE WITNESS: THE COURT: units in like a U? THE WITNESS: THE COURT: THE WITNESS: Yes. On the garden side? On the garden side, the houses are Yes. On the service side, are the
in a row, and we have the curved sidewalk, large oval space in the middle, one of the unique features of that particular Court, and then there's the garden side, yards
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on the other side, and an additional row from the other Court. So my thinking is that if Mr. Popovic were to take a walk into that common area, far enough away, I don't know if it's ten feet into the common area or 20 feet, that would probably do a lot to solve the problem. THE COURT: Do you know how far it is from, for
example, your patio to the common area? THE WITNESS: My patio to the common area is It's the
probably the same distance as Mr. Popovic's. length of the property line.
There's a pathway that goes I think we
between the two units out to the common area. have the exact measurements somewhere. THE COURT: THE WITNESS: THE COURT: Ball park? 25 feet, I imagine.
Any questions based on my questions? No, Your Honor.
MR. SZYMKOWICZ: MR. FISHER: THE COURT: THE WITNESS: THE COURT:
No, Your Honor. Thank you, sir. Thank you. You may step down.
If you're hungry, you can go to lunch. In fact, everybody can go to lunch. about a quarter after 1:00. MR. GOECKE: Thanks, Your Honor. Be back
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MR. SZYMKOWICZ: (Recess - lunch.) MR. SZYMKOWICZ: are going to call GHI. THE COURT: MR. FISHER: Okay.
Thank you.
Good afternoon, Your Honor.
We
Your Honor, for purposes of the
record, I believe Mr. Szymkowicz had issued a specific subpoena to GHI specifically with respect to the testimony he wanted somebody here to testify about. I would ask
that the proffer, I would raise to the Court so they are aware of the issues he subpoenaed on here. We have
identified Ms. Overdurff as the designee on those issues MR. SZYMKOWICZ: of the subpoena. THE DEPUTY CLERK: (Witness sworn.) THE DEPUTY CLERK: You may be seated. Raise your right hand. I don't think I have got a copy
Please state your first and last name; spell them for the record. THE WITNESS: me to spell it again? I'm Gretchen Overdurff. Okay. G-R-E-T-C-H-E-N. You want Last name
is O-V-E-R as in the word "over," D-U-R two Fs as in Frank. THE DEPUTY CLERK: Thank you.
GRETCHEN OVERDURFF,
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a witness produced on call of the Plaintiff, having first been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. SZYMKOWICZ: Q. Ms. Overdurff, I'm showing you what has been Can you tell me what that
marked as Exhibit No. 30. document is? A. Q. A.
Yes, it's a letter from me to Mrs. Popovic. You wrote the letter? Yes. MR. SZYMKOWICZ: Your Honor, I move this into
evidence as Exhibit No. 30. THE COURT: talked about? MR. SZYMKOWICZ: Yes, that was one of the ones Is this the one we have already
that we were forced to go through the motion. MR. FISHER: THE COURT: MR. FISHER: No objection to 30, Your Honor. We'll admit 30. Your Honor, if I may, just to
follow up on my moment ago, here's a copy of the subpoena. If I could just proffer into the record that Ms. Overdurff, during us testifying, topics to be discussed pursuant to the subpoena: GHI member complaints
and panel procedures; GHI Member Handbook; three, GHI's Mutual Ownership Contract; four, Schuman Popovic dispute.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. No. 41. A. Q. Q.
THE COURT:
All right.
And she is here pursuant
to the subpoena to testify.
She has also been here
throughout as the corporate designee of GHI permitted to represent the party opponent. latitude. MR. SZYMKOWICZ: beyond what we asked. BY MR. SZYMKOWICZ: I'm showing you what has been marked as Have you ever seen this I don't think we are going I'll certainly allow the
Plaintiff's Exhibit No. 36. document? A. Q. A. Yes.
What is this document? It's a letter from the President of the Board to
Mrs. Popovic. MR. SZYMKOWICZ: Okay. Your Honor, I move this
into evidence as Exhibit No. 36? MR. FISHER: THE COURT: No objection, Your Honor. It will be admitted.
(Plaintiff's Exhibit No. 36, previously marked for identification, was admitted into evidence.) I'm showing you what has been marked as Exhibit Have you ever seen this document before? Yes. What is that?
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A.
Those are notes from the Member Complaint's
Panel meeting. Q. A. Q. A. time. Q. A. Q. A. But there was somebody on the GHI Board? Yes. No. Who created the notes? The recording secretary. Somebody within GHI? I don't recall who was doing the work at that
Was it somebody employed by GHI? Yes. MR. SZYMKOWIZC: Your Honor, I move Exhibit No.
41 into evidence? THE COURT: MR. FISHER: Any objection to 41? Your Honor, 41, we would object
with respect to the hearsay contained within that document, Your Honor, as well as, I believe, the opinions offered by Mr. Repace. Again, they are hearsay, but even
further than the hearsay objection, Your Honor, the statements made by Mr. Repace in this document go to some of the ultimate issues as well as opinions that would be expert opinions; again, Mr. Repace has not yet testified; not been qualified as an expert. Certainly, I'm presuming he will testify on these same issues before the Court, but through this
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document, I believe it would be hearsay; not admissible. THE COURT: Your objection is to the hearsay
nature based on representations within that document by Mr. Repace? MR. FISHER: Correct. As well as the hearsay of
the other individuals set forth in the document, itself. THE COURT: Okay. It may well be a business
record, but at this point, we don't have the sufficient authentication for its admission as a business record. I'll sustain the objection at this point. BY MR. SZYMKOWICZ: Q. Was this document kept in the regular course of
action of GHI's management? A. Q. Yes, it was retained on-site. And you were the -- for the purposes of today,
you are the custodian of the records of this document? MR. GOECKE: THE COURT: Objection, Your Honor. Rephrase.
BY MR. SZYMKOWICZ: Q. Who is in control of this document? It would be
you, right? MR. GOECKE: THE COURT: Objection, Your Honor. "It would be you" is the leading Sustained.
nature of the question.
BY MR. SZYMKOWICZ:
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Q. A. Q. A. Q. correct? A.
Who was in charge of retaining this document? The director of Member Services. Who would that be? Joan Krob. And you were designated as GHI's representative,
Yes. MR. SZYMKOWICZ: THE COURT: MR. FISHER: Your Honor, I think we --
I'm going to reserve at this point. Your Honor, I will object that
Ms. Overdurff has indicated that she is not the custodian of the records, of these minutes, nor did she take these minutes. THE COURT: I understand. I'm going to reserve
and think about this a little bit. BY MR. SZYMKOWICZ: Q. Exhibit 42, can you tell me what this document
A.
Those are notes of the Member Complaints Panel
meeting, and that particular one, those are notes of the conversation with Mrs. Popovic. Q. Did you attend personally, in your capacity as
Gretchen Overdurff, the manager of the GHI complex, did you attend this meeting? A. Yes.
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Q.
Do the minutes accurately reflect the statements
made at that meeting? A. I would have to reread the entire thing again,
but I do believe that they capture what was said. Q. A. Q. A. Q. A. Q. A. Q. A. Okay. You can read it if you want?
There were several pages, I believe. Okay. The printed version is here. Yeah, that's fine.
Doesn't matter. Last pages?
I wouldn't recall if it was verbatim. But it was close, correct? What was the number? Exhibit 42, the last, very last exhibit? Okay. (Off the record discussion ensued.) THE COURT: Let me understand the objection to
41 and 42 was based on hearsay? MR. GOECKE: MR. FISHER: (Witness nods head up and down). Yes, Your Honor. Again, custodian
of the records is at issue.
Again, Your Honor, if you
actually look at these documents, they are not verbatim transcription of the meeting. There's gaps. They are not
accurate in terms of the representations that are trying to be made here. He wants to ask questions about people I think that
that were in attendance about what happened.
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certainly he can explore -MR. SZYMKOWICZ: Your Honor, if they are not
accurate, that brings up a whole other can of worms. Accurate in the sense of the missing pieces -THE COURT: yesterday show: discovery. Here's the things my notes from
That these were supplied by GHI in
If the objection is based on hearsay grounds,
I'll note the objection; I'll admit them by applying them in a discovery request. GHI is now going to deny their authenticity, then we have a serious, serious issue with regard to a violation of the discovery rules; so, I'm going to admit them. MR. FISHER: THE COURT: MR. FISHER: THE COURT: But, Your Honor -Now I think I was talking. I'm sorry, Your Honor. Now, as far as some of the comments
in it, I'm not necessarily going to accept them for the truth of the content; for example: If Mr. Repace is going
to testify, his testimony in Court is going to be something I'm going to have to look at. If it's
inconsistent with something that was previous, there may be impeachment content. I don't know, but GHI supplied I
these documents; the objection is on hearsay grounds. note the objection. 41 and 42 are admitted.
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(Plaintiff's Exhibit Nos. 41 through 42, previously marked for identification. were admitted into evidence.) MR. FISHER: Thank you, Your Honor.
Your Honor, just to clarify, there's no question of authenticity. The issue is hearsay. Right. Again, you know, I'm not
THE COURT:
going to necessarily accept these for the truth of comments made in there by people that are not present in Court. MR. FISHER: THE COURT: Thank you. Okay.
BY MR. SZYMKOWICZ: You do not contest the fact that secondhand
smoke is harmful to a third-party that breathes in the secondhand smoke, do you? MR. FISHER: Objection. We asked this in deposition. We ask
MR. SZYMKOWICZ:
This has been an issue the whole time, Your Honor. this as GHI in the deposition of GHI. THE COURT:
You can contest secondhand smoke --
Does GHI contest that secondhand smoke can be harmful? THE WITNESS: GHI did not make a determination.
MR. SZYMKOWICZ:
Not the question, Your Honor.
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THE WITNESS: THE COURT: that determination.
Okay. Well, she just said GHI did not make
They neither contest nor agree. I'm talking about now do they
MR. SZYMKOWICZ:
contest the fact that secondhand smoke is dangerous. MR. FISHER: THE COURT: Objection, Your Honor. Well -She said in the past. I'm
MR. SZYMKOWICZ: talking about the present. THE COURT:
All right.
GHI contest whether or
not secondhand smoke is harmful? MR. FISHER: Your Honor, I would object on two
One is relevancy in terms of the broad question
of whether GHI believes, as a general statement, that secondhand smoke can be harmful. The specific issue here
is whether Mr. Schuman's issues pertain to this case -THE COURT: Because the issue in this case is
whether or not there was a nuisance and if GHI knew there was a nuisance. What, if anything, they did or did not do
about that nuisance, I think, would go to that issue. Whether or not they made the determination, I don't know. So we're not talking about you personally. THE WITNESS: THE COURT: Right, I understand. We are talking about GHI as a
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corporate entity. THE WITNESS: So what is the question then?
BY MR. SZYMKOWICZ: Q. Is secondhand smoke harmful to third-parties to
breathe in the secondhand smoke? MR. FISHER: Objection, Your Honor. She is not
qualified to answer the question. THE COURT: objection. BY MR. SZYMKOWICZ: Q. Does GHI contest the fact that secondhand smoke That question I have to sustain the
is harmful to third-parties that breathe in the secondhand smoke? THE COURT: THE WITNESS: that makes decisions. You can answer that. GHI, is the Board of Directors This was not discussed.
BY MR. SZYMKOWICZ: Q. We are asking today, here in Court; not last
year; not ten years ago; today, does GHI contest that, because that's going to go to what we are trying to prove in our case? THE COURT: is not GHI. She is a representative of GHI. She
She can speak for the Board made no decision How can she say? May I approach, Your Honor?
one way or the other.
MR. SZYMKOWICZ:
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THE COURT:
You can certainly go into the
deposition issue; I mean, she is a party opponent. BY MR. SZYMKOWICZ: Ms. Overdurff, I have asked you to read page
twenty, lines four through twelve? A. Q. A. Okay. Please read that out loud? "Do you agree that secondhand smoke is harmful
to third-parties who breathe in the secondhand smoke?" "Personally, yes, if they are exposed to enough of it. That's just based on my opinion." "What about as GHI?"
Question:
The co-op has received information, and it's been reviewed the reports are accurate that if the -- if the reports are accurate, that would be the conclusion to be drawn. "That secondhand smoke is harmful to third-parties that breathe in secondhand smoke?" "Yes, yes, if the studies that were done and so forth are valid." What about studies -That's fine. I ask you again, does GHI contest the fact, here today, that secondhand smoke is harmful to third-parties that breathe in secondhand smoke?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. Yes or no?
MR. FISHER: asked and answered.
Objection, Your Honor.
It's been
MR. SZYMKOWICZ:
Hasn't really been.
She just
read here the deposition transcript. MR. FISHER: Correct. It's a different
question in the deposition than it is today. THE COURT: Has GHI taken a position, one way or
the other, on whether or not secondhand smoke is harmful to third persons who breathe in smoke? THE WITNESS: I believe they would say, just as
I said before, that if you have enough of it, it could be. BY MR. SZYMKOWICZ: I don't care "could be." I care is it or not?
MR. FISHER: THE WITNESS:
Objection, Your Honor. I'm not in a position as an expert
to say that it is or it isn't. BY MR. SZYMKOWICZ: Didn't the Member Complaints Panel take it as a
given that secondhand smoke is dangerous when it heard evidence in the Schuman and Popovic matter in 2010 -2009, rather? MR. FISHER: THE COURT: THE WITNESS: Objection. Go ahead. No.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. Q. nineteen. Q.
BY MR. SZYMKOWICZ: I direct your attention to page fourteen of I ask that you read in page
Diana McFadden's deposition.
fourteen, lines thirteen through sixteen? MR. FISHER: Objection, Your Honor. I'm sorry; thirteen through
MR. SZYMKOWICZ:
THE COURT: you a question. THE WITNESS: Complaints -THE COURT: THE WITNESS:
Read it to yourself; then he'll ask
Okay.
Question:
Did the Member
Read it to yourself. Oh, I'm sorry. This was a
Question -- question -- Okay. response by one member. BY MR. SZYMKOWICZ:
Let me ask you again, did the Member Complaints
Panel take it as a given that the secondhand smoke was present in Mr. Schuman's unit? MR. FISHER: Objection.
BY MR. SZYMKOWICZ: Yes or no? The Member Complaints Panel did not. I direct your attention to the deposition.
Isn't that exactly the opposite of what the deposition
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testimony was? MR. FISHER: THE COURT: Objection, Your Honor. Sustained.
BY MR. SZYMKOWICZ: Q. Isn't it true that the statement of GHI to that
question was, yes, rather than the answer, no, that you just gave? MR. FISHER: THE COURT: that are in evidence? MR. SZYMKOWICZ: deposition transcript. THE COURT: Of somebody else? No, of Diana McFadden, who is No, this is the transcript, Objection, Your Honor. Is this in either of the exhibits
MR. SZYMKOWICZ:
the GHI Member Complaints Panel. THE COURT: She is not here? She is not here, Your Honor.
MR. SZYMKOWICZ:
Who is here, GHI, and GHI, who you know the corporation was there, and it's they are here today presenting testimony through Ms. Overdurff. They can testify, and
that's why we spent all this money on these depositions. THE COURT: I understand. To find out what the answer
MR. SZYMKOWICZ: was. THE COURT:
But the Member Complaints Panel is a
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function of GHI? MR. SZYMKOWICZ: MR. FISHER: Correct.
Committee within GHI, but, Your Also, despite
Honor, again, I would object to hearsay.
Mr. Szymkowicz' representations, he did issue a subpoena, which I thought this may become an issue here, which is why I wanted to proffer the subpoena to GHI doesn't go to this issue. THE COURT: She has been represented yesterday
and today as the corporate designee sitting at Counsel table on behalf of GHI; so, she is here well beyond just the subpoena. You can answer the question. MR. FISHER: heard? THE COURT: MR. FISHER: Sure. But the subpoena that was the But, Your Honor, if I just may be
result of that deposition was to that individual personally, okay, and if Ms. Overdurff is asked the question about what the complaint's panel did, that's fine, but with respect to what Counsel is trying to allude here with respect to what happened at the deposition is something different. He asked her the question already
with respect to the Member Complaints Panel and what they did.
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THE COURT:
Let me ask you, Ms. McFadden was a
member of the Member Complaints Panel? MR. SZYMKOWICZ: I believe she was, Your Honor.
My client says, yes. THE COURT: she wasn't -MR. SZYMKOWICZ: member of the panel. THE COURT: That's part of the GHI? Yes. Mr. Schuman said she was a Why would you take her deposition if
So this is a deposition of,
effectively, a person that was a party opponent? MR. SZYMKOWICZ: THE COURT: (Nods head up and down).
You can read the whole deposition in
the record if you want. MR. SZYMKOWICZ: I don't think we need to. I
have got -- I've got some limited questions, you know. THE WITNESS: Fine.
BY MR. SZYMKOWICZ: So let me ask the question yet again. Did the
Member Complaints Panel take it as a given that secondhand smoke was present in Mr. Schuman's unit? If you need to refer to Ms. McFadden's deposition transcript, it's on page thirteen, lines thirteen through nineteen?
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A. Q. A. Q.
They heard from him that it was present. No, that's not -They didn't come to any conclusions. But that's not what I asked. I said very
specifically, did the Member Complaints Panel take it as a given that secondhand smoke was present in Mr. Schuman's unit? Not what they found when they went in there; did
they take it as a given the secondhand smoke was there? MR. FISHER: question. THE COURT: I said she has answered that I think she has answered the
question in the negative. MR. SZYMKOWICZ: Your Honor, I move
Ms. McFadden's deposition transcript into evidence. THE COURT: read. MR. SZYMKOWICZ: Deposition of Diana McFadden, Okay. Read the lines you want to
Tuesday, July 20th, 2010, page fourteen, lines thirteen through sixteen: "Did the Member Complaints Panel take it as a given that secondhand smoke was present in Schuman's unit?" Answer: "Yes, uh-huh."
BY MR. SZYMKOWICZ: Q. My next question to Ms. Overdurff as GHI is:
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Did the Board take it as a given that secondhand smoke is dangerous? Yes or no? And if you need help to refresh
your recollection, I direct your attention to page fourteen of Diana McFadden's deposition, lines seventeen through nineteen. A. I don't think that represented what the Board as
a body thought. MR. SZYMKOWICZ: Your Honor, I move Diana
McFadden's deposition into evidence; specifically, pages fourteen -- page fourteen, line seventeen through nineteen: Question: "And that the Board took it as a
given that secondhand smoke is dangerous?" Answer: "Yes."
BY MR. SZYMKOWICZ: Q. My next question to Ms. Overdurff as GHI: You
admit, don't you, that secondhand smoke from the Popovics' unit migrated into Mr. Schuman's unit through the common walls, don't you? MR. FISHER: THE COURT: THE WITNESS: Objection. All right. Yes.
BY MR. SZYMKOWICZ: Q. You agree, don't you, that any sealing efforts
that GHI or the parties could undertake with regard to the
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walls between the Schuman and Popovic units would not prevent smoke from coming into an open window, would it? MR. FISHER: THE COURT: THE WITNESS: would not prevent it. BY MR. SZYMKOWICZ: Q. Do you agree that the only way to control Objection, Your Honor. Go ahead. No, or, yes, I would agree it
exposure to secondhand smoke is through a ban on smoking? MR. FISHER: THE COURT: Objection, Your Honor. Her personally? GHI. All these questions to
MR. SZYMKOWICZ: GHI; not to her. THE WITNESS:
No, no.
BY MR. SZYMKOWICZ: Q. Well, I direct your attention to page
thirty-three -- I'm sorry -- thirty-four and thirty-five of your deposition. Can you read that and refresh your
recollection, page thirty-four of your deposition, Gretchen Overdurff, thirty-four, lines seventeen through 35, line eight -- I'm sorry -- 35 line twelve? A. Q. Okay. Okay. I'm going to ask the question again:
Does GHI agree that the only way to fully control exposure to secondhand smoke is through the enforcement of a
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complete ban on smoking? MR. FISHER: THE COURT: THE WITNESS: Objection. Go ahead. I'm not sure this followed what
you were asking me on page 35. BY MR. SZYMKOWICZ: Q. page? A. Q. A. Q. This asks about the Surgeon General's Report. Uh-huh. Here, let me point it out to you. Thirty-four to 35? Thirty-four, bottom of the
Yes, please. Right there. (Off the record discussion ensued.) THE WITNESS: Okay. So the question was do I
agree? BY MR. SZYMKOWICZ: Q. Yes? MR. FISHER: If you could restate the question.
BY MR. SZYMKOWICZ: Q. Do you agree that the only way to fully control
exposure to secondhand smoke is through a complete ban on smoking? A. here. Q. Well, the question was a little bit different This referred to HVAC systems. Can you answer the question yes or no?
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A. done. Q. A. Q.
I believe there are other means that can be
Like what? Such as the use of fans, for instance. What is that belief based upon? Do you have any
support for that? A. People who have used fans have indicated that
that has moved the smoke away without the use of an HVAC system. MR. SZYMKOWICZ: Your Honor, I move the
admission of Ms. Overdurff's deposition as GHI, Monday, July 19th, 2010, into the record; specifically pages thirty-four to 35. Page thirty-four, line seventeen: Question: "I direct your attention to page Period.
ninety-two of the Surgeon General's 2006 Report."
"Specifically," comma, "the implication section and the sentence about seven or eight lines down that says," comma, "Current" HVA -- should be "HVAC systems cannot fully control exposures to secondhand smoke unless a complete smoking ban is enforced; furthermore, unless carefully controlled HVAC operations can distribute air that has been contaminated with secondhand smoke throughout a building." "Do you agree or disagree with this is passage?"
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"Mr. Goecke: "The Witness:
Objection." I agree."
"And is that GHI's answer as well?" "Yes." "Mr. Goecke: "The Witness: And Question: Objection." Yes." "Are you aware of any facts or
opinions contrary to this passage?" Answer: "No." Next question.
THE COURT:
BY MR. SZYMKOWICZ: Do you agree or disagree with the conclusions of
Mr. Repace's first report that was given to GHI during the Member Complaints Panel; specifically, the conclusion that "Mr. Schuman's average daily secondhand smoke-nicotine exposure produces an estimated excess chronic mortality risk that exceeds by nine hundred ten times the di minimis risk level used by the United States Environmental Protection Agency for hazardous air pollutants," comma, "nine hundred and ten times the federal de minimus risk level and is triple the level that constitutes a de manifestis or obvious risk by federal regulatory standards. This is quite a significant risk." That I direct your attention to page thirty-nine of your deposition?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. findings?
Objection, Your Honor. Question is?
BY MR. SZYMKOWICZ: Does GHI agree or disagree with Mr. Repace's
MR. FISHER:
Your Honor, if I can make my -Mr. Repace hasn't testified. The
first of all, it's hearsay.
His report has not not been admitted into evidence.
opinions have been expressed by Mr. Repace would be expert opinion, which has not been proved to this Court at this point in time. Ms. Overdurff, as GHI's representative, would not be qualified to offer expert opinion as to the truth of it. We are going to hear testimony from the experts; I
mean, there's hearsay, Your Honor; trying to read an expert opinion through reading from a deposition, not proper, Your Honor. MR. SZYMKOWICZ: Your Honor, if I may, what we
were trying to do through these depositions is to find out what is at issue in this case. We asked the question; we
got the answers we were looking for; so, we didn't proceed down any further roads. THE COURT: And her answer on behalf of GHI was? "Do you agree with the
MR. SZYMKOWICZ:
statements made in this paragraph?"
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Answer was:
"If that's what he has found."
And that's page forty? MR. FISHER: That doesn't mean the statements
made are true; just means we agree that's what he said. THE COURT: That's a fair argument. No, I said, "Do you agree with
MR. SZYMKOWICZ: the statements made?" And the answer: THE COURT: MR. FISHER: you know my position. MR. SZYMKOWICZ:
"If that's what he's found." Okay.
That's what he's found.
Again, Your Honor, for the record,
Your Honor, I move the
admission of Ms. Overdurff's deposition testimony from July 19th as GHI's corporate designee, pages thirty-nine through forty, line 6. Question: "Do you agree or disagree with the
statement in paragraph three, that Mr. Schuman's average daily secondhand smoke dash nicotine exposure produces an estimated excess chronic mortality risk that exceeds by nine hundred ten times the de minimis risk used by the United States Environmental Protection Agency for hazardous air pollutants, nine hundred ten times the federal de minimis risk level and is triple the level that constitutes a de manifestis or obvious risk by Federal regulatory standards. This is quite a significant risk."
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"Do you agree or disagree with this finding?" "Mr. Goecke: "The Witness: Objection, no foundation." About it being a risk, is that Do I agree?"
Is that the question? "Mr. Goecke:
I think he's asking, do you agree
with all the statements made in that paragraph?" Question: in this paragraph?" I think there should be an "agree" after "do you" agree with all the statements made in this paragraph? Answer: "If that's what he has found." "Do you, with all the statements made
And then The Witness -Mr. Goecke says: with those findings?" "The Witness: With the findings? He's "He's asking you, do you agree
reporting that's what he found, so I have to agree that that's probably what he came up with." And the answer -- the next question was: that the same answer for GHI as well?" "Mr. Goecke: "The Witness: Objection." Yeah, yes." "Are you aware of "Is
And the next question was:
any facts or opinions that are contrary to this paragraph?" The answer is: "No."
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q.
MR. FISHER: for the record. THE COURT:
Again, Your Honor, same objection
Okay.
BY MR. SZYKOWICZ: Next question for GHI today: At no time did
Mr. Schuman ever indicate that he wanted smoking banned in every area controlled by GHI, did he? A. Q. No. Rather, at all times, Mr. Schuman indicated that
he really only cared about his own unit and protecting himself from secondhand smoke migrating from the Popovic unit, didn't he? A. Q. Yes. You admit that GHI may control its members'
behaviors if they violate GHI's Member Handbook, laws or by-rules, correct? MR. FISHER: Your Honor. THE COURT: THE WITNESS: That's all right. They can. Objection, form of the question,
BY MR. SZYMKOWICZ: You admit that GHI has the power to discipline
members if its members were to engage in objectionable conduct under the terms of the Member Handbook? MR. FISHER: Objection to form, Your Honor.
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THE COURT: THE WITNESS: specific rule, yes.
It's all right. If there's a breach of the
BY MR. SZYMKOWICZ: You agree that GHI could tell the member to cut
the grass if their grass was too high, don't you? A. Q. Yes. You agree that GHI could tell the member to turn
the volume on their music down if the music was being played too loud, don't you? A. Q. Yes. If GHI could tell a member to cut their grass if
their grass was too high or tell the member to turn the music down if it was too loud, why didn't GHI believe it had the power to tell the Popovics to stop smoking if the smoking violated the nuisance clause in the Member Handbook? A. The clause in the handbook is a general clause.
It does not outline or specifically state what types of nuisances or annoyances would be a breach -Q. The nuisance clause -MR. FISHER: answering the question. THE COURT: THE WITNESS: Did you finish the answer? You asked me about noise and Your Honor, she hasn't finished
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cutting the grass.
There are rules not only in GHI, but
the City of Greenbelt has ordinances. Q. Where is the rule that says you need to cut your
grass in GHI's handbook? A. Q. A. Q. A. It's under care of the yard. What about noise? It's talks about noise. Where? I don't have a handbook here, so I don't know The City of Greenbelt has an
specifically where.
ordinance about noise as well. Q. I'm showing you the GHI Member Handbook; should Can you look
be in Exhibit 2 of the Defendant's Exhibits.
through this large compilation of pages and tell me where it states that GHI is allowed to tell somebody to turn -to turn their music down? A. I'm not finding a specific reference to noise.
There's a city ordinance that states a time and the amount of decibels. Q. Why would GHI enforce a city ordinance? You are
not the Police, are you? A. No. Because it coincides with the GHI Board
minutes -- Board -- if it coincides with the GHI rule, then it would be involved. Q. You said there's no rule on noise with GHI?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. yes. Q. offices. Q.
MR. FISHER: she didn't find it. admitted.
Testified
Mr. Szymkowicz wants to have it
MR. SZYMKOWICZ:
Why would I want to admit
something if it's not there. BY MR. SZYMKOWICZ: Does the noise ordinance exist in the GHI rules,
themselves, or the Member Handbook? A. Q. Not the City -- not a noise ordinance. So noise isn't even addressed in the Member
Handbook, is it? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. If you know? I'm not finding it.
BY MR. SZYMKOWICZ: GHI policy that smoking is not permitted in its Doesn't it have a policy? MR. FISHER: THE WITNESS: Objection, Your Honor, relevance. In the administration building,
THE COURT:
All right.
BY MR. SZYMKOWICZ: GHI ban smoking in its offices because --
because of any health concern, but, rather, because it was a smell issue that was offensive to people, didn't it?
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A. Q.
Yes. And you agree that secondhand -- GHI agrees that
secondhand smoke is irritating and malodorous, doesn't it? A. Q. Yes. During the Member Complaints Panel process, the
Popovics never contested that secondhand smoke was a nuisance to Mr. Schuman, did they? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. Sustained. I don't recall.
BY MR. SZYMKOWICZ: Q. At the end of the Member Complaints Panel
process, GHI told Mr. Schuman and the Popovics to work it out amongst themselves regarding the secondhand smoke issue, didn't they? A. given. Q. A. What was the other advice? Well the member complaint process seeks to find That was one of the pieces of advice that was
ways to engage members to work toward a solution, and so they asked the participants, at that level, to find ways; things that they can do to help resolve the problem. Q. But at the time you were involved in -MR. FISHER: Objection, Your Honor. If she can
finish answering the question.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. Q. A. given.
THE WITNESS:
There were a number of suggestions
BY MR. SZYMKOWICZ: What were the suggestions given? They would try the use of a fan or a HEPA
filter, smokeless ashtrays. Q. A. Q. That didn't work, did it? Not if there's still a complaint. So GHI didn't follow through their own
procedures, did they, in enforcing the nuisance? A. Well, the first step of the member complaints It's not to make a
process is to receive information. decision. Q. Okay.
But Mr. Schuman never got to any
subsequent level of the member complaints process, did he? MR. FISHER: Objection, Your Honor.
BY MR. SZYMKOWICZ: They cut him out at the beginning? THE COURT: THE WITNESS: back to 1997. BY MR. SZYMKOWICZ: Not 1997. MR. FISHER: 2009? Objection, Your Honor. He asked You can answer. Go ahead. This goes
After the first round?
the question; should be able to answer it.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Q. problem? A. Q.
THE WITNESS: Suggestions were given.
Well, it was the same process. Members were asked to try to find
ways to work together to solve the problem. BY MR. SZYMKOWICZ: Didn't happen, did it? They still have a
Yes, apparently. So the process didn't work, did it? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. She can answer that. It ended there.
BY MR. SZYMKOWICZ: Why did it end there? Why didn't it continue?
Why didn't GHI order the Popovics to stop smoking? A. Well, the Board did not feel they had authority
to tell them that they could not smoke in their home. Q. A. Why not? Because GHI is not a smoke-free community, and
one of the things you have to remember is that these homes were built at a time unlike modern-day construction. There are lots of openings. They don't have the
insulation, and this is the fact that exists, and people are made aware at the time that they purchase that these homes are older; that sound, smells, scents will pass between units. Because there's no rule against smoking,
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the Board did not feel they had the authority or the power to tell the Popovics to stop smoking within their own home. Q. So even though secondhand smoke was an annoyance
to Mr. Schuman, GHI didn't take any action, did it? MR. FISHER: THE COURT: THE WITNESS: action. BY MR. SZYMKOWICZ: Q. A. What was the action taken? They met with people; held mediation; made They brought in an environmental hygienist Objection, Your Honor. She testified what action they took. Yes, I believe that GHI did take
suggestions.
to do some testing. Q. I'm talking about this time, 2009? MR. FISHER: THE COURT: THE WITNESS: We had meetings. Objection, Your Honor. Go ahead. Same thing. We had mediations.
We made suggestions to people about
things they could do. BY MR. SZYMKOWICZ: Q. But the Popovics never took anybody up on the
suggestions, did they? MR. FISHER: THE WITNESS: Objection, Your Honor. I can't respond to that.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. objection. Q. Q. A.
BY MR. SZYMKOWICZ: Did the Popovics ever stop smoking? I don't believe that they did, obviously, but
there were other things that were suggested that they may have done. Q. A. Like what? Like use of filters; like use of fans. Those
were two suggestions that were made. Q. So even though it was clear to everybody in this
process that the Popovics' smoking was annoying Mr. Schuman, GHI simply chose to do nothing? MR. FISHER: Objection, Your Honor.
BY MR. SZYMKOWICZ: Would you agree with that statement with regard
to solving the problem? MR. FISHER: characterization. THE COURT: THE WITNESS: MR. FISHER: Asked and answered. No, GHI -Ms. Overdurff, he sustained the I would object to the
(Off the record discussion ensued.) BY MR. SZYMKOWICZ: Does GHI believe that Mr. Schuman's renovations
caused his secondhand smoke problem?
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A.
They believe that it may have contributed to the
problem, yes. Q. A. Q. How? By opening up the walls. Did GHI seal the Popovic walls on the Popovic
side of the wall? A. Q. They did some sealing, yes. Mr. Schuman's renovations didn't go into the
Popovic unit, did it? A. Q. No, it didn't. So how could the renovations have caused the
breakdown of the seals on the Popovic side? MR. FISHER: THE COURT: Objection, Your Honor. Been no testimony that there are any
seals on the Popovic side. MR. SZYMKOWICZ: that. THE COURT: THE WITNESS: THE COURT: MR. FISHER: On the Popovic side? (Witness nods head up and down). Okay. Go ahead. I think she just testified
Your Honor, I would also object.
It's asking her to speculate. THE COURT: THE WITNESS: If you know. There was sealing done outside.
BY MR. SZYMKOWICZ:
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Q. A.
On the Popovic side? Yes, but by opening the walls, there is that
common area between the units that smoke may have gotten into. Q. But that's only half of the wall. The
contractor didn't go and affect the Popovic side of the wall, did they? MR. FISHER: THE COURT: THE WITNESS: Popovic side. BY MR. SZYMKOWICZ: Q. So the contractor for Mr. Schuman couldn't have Objection, Your Honor. If you know. No, they didn't go into the
damaged any seals on the Popovic side of the wall, could they? A. Q. No. And the outside smoking problem had nothing to
do with the renovations that Mr. Schuman performed, did it? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. If you know. No. Court's indulgence, Your Honor?
MR. SZYMKOWICZ:
BY MR. SZYMKOWICZ: Q. Does GHI agree with the statement that
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nonsmokers are placed at increased risk for developing diseases as a result of the exposures to environmental tobacco smoke? A. Q. They could be. I direct your attention to -(Off the record discussion ensued.) BY MR. SZYMKOWICZ: Q. I direct your attention to page forty -- strike
that -- thirty-nine of Suzette Agans' deposition transcript. Can you please read page thirty-nine, lines
seventeen through 22? A. Question: "Do you agree with the statement
nonsmokers are placed at increased risk for developing diseases as a result of the exposure to environmental tobacco?" Answer: so, yes." Q. A. Q. Is that GHI's answer today? Yes. Do you agree with the statement, "The scientific "Well, the Surgeon General says it is
case against involuntary smoking as a health risk is more than sufficient to justify appropriate remedial action, and the goal of any remedial action must be to protect the nonsmoker from environmental tobacco smoke"? Do you agree or disagree with this statement?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. from GHI. Q.
Objection, Your Honor. Go ahead. Does GHI agree?
BY MR. SZYMKOWICZ: GHI? I don't think there's a black or white answer I think it would depend on the circumstances. Do you agree or disagree with the statement that
the responsibility to protect the safety of the indoor environment is shared by all who occupy or control that environment? A. Yes, in part. It's especially of the part about
those who occupy it. Q. But control, do you agree with the statement
that the responsibility to protect the safety of the indoor environment is shared by all who control that environment? A. Q. In part, yes. I direct your attention to page 41 of Suzette
Agans' deposition transcript, lines one through seven. Question: "Do you also agree with the phrase,
'The responsibility to protect the safety of the indoor environment is shared by all who occupy or control the environment'?" "Do you agree with this statement?" "Yes."
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q. Q. A. Q.
BY MR. SZYMKOWICZ: Is that GHI's answer today? In part, yes. Ms. Agans, when she testified at deposition, She just
didn't use the qualifier, "in part," did she? said, "Yes"? MR. FISHER: Objection.
BY MR. SZYMKOWICZ: Did she? She said, "Yes." Who is Suzette Agans? She was the Board President at the time. So why isn't that GHI's answer today? Why isn't
the answer just yes? A. One of the things about GHI is that there is
shared responsibility to everything; for the maintenance of the homes as well, and so I think GHI agrees that the members have a responsiblity to share in that responsiblity. Q. But I can't bring every member of GHI here.
There's 1600 people there probably. A. Q. That's correct. So I'm asking you, based on the question that I
just asked Suzette Agans, why is GHI's answer different than its President who has the apparent authority to act
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on behalf of GHI? MR. FISHER: answered. Objection, Your Honor, asked and
Argumentative. Again, Your Honor can weigh the testimony for
yourself. THE COURT: Sustained. She has answered it.
BY MR. SZYMKOWICZ: Q. Do you agree with the statement that the choice
to smoke cannot interfere with the nonsmoker's right to breathe air free of tobacco smoke? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. Go ahead? Yes.
BY MR. SZYMKOWICZ: Q. Do you agree with the statement that the right
of smokers to smoke ends when their behavior affects the health and well-being of others? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. Go ahead. Yes.
BY MR. SZYMKOWICZ: Q. Do you agree with the statement that it's the
smoker's responsibility to ensure they do not expose nonsmokers to the potential harmful effects of tobacco smoke?
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MR. FISHER: THE COURT: THE WITNESS:
Objection, Your Honor. Go ahead. In part. I think people also have
a responsiblity to find a way to move away from it -Q. A. What do you mean by that? -- if possible. To remove themselves from the
situation or to take steps that might help prevent the smoke. Q. So in Mr. Schuman's case, basically, GHI was
telling Mr. Schuman to move out, didn't they? MR. FISHER: foundation laid. THE COURT: Sustained. Objection, Your Honor. Been no
BY MR. SZYMKOWICZ: Didn't GHI tell Mr. Schuman, if you don't like
it, move out? A. Q. A. No, we didn't. What did they tell him specifically? They said there was no more that they could do
as the Board. Q. I direct your attention to the exhibit dated
October 8th, 2009. MR. FISHER: Do you have that exhibit number? I'm looking. I'm looking for
MR. SZYMKOWICZ: that number, Your Honor.
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(Off the record discussion ensued.) MR. GOECKE: Plaintiff's number. MR. SZYMKOWICZ: I'll find it. Defendant's 66 or 67. I don't know
(Off the record discussion ensued.) BY MR. SZYMKOWICZ: Ms. Overdurff, I ask that you read Exhibit
No. 35 and Exhibit No. 36 as well. THE COURT: Plaintiff's or Defense? Plaintiff's.
MR. SZYMKOWICZ: MR. FISHER:
So what is the question again,
BY MR. SZYMKOWICZ: Based on 35, that, basically, GHI told
Mr. Schuman that he either had to deal with it or leave, correct? MR. FISHER: THE WITNESS: Objection, Your Honor. I don't read the letter that way.
I believe he was asked to consider being part of the solution, and I believe, during the meetings, it was suggested that maybe efforts like to, you know, work with a committee. There are ways that members can become
involved to help change rules. BY MR. SZYMKOWICZ: But he didn't want to change rules?
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 testify. Q. Q. respect.
MR. FISHER: answering the question. THE COURT: THE WITNESS: letter says.
She is
Let her finish. So I'm referring to what this
We hope you "will consider the problem more
fully and be willing to be part of the solution." BY MR. SZYMKOWICZ: That's a ridiculous statement with all due
Objection, Your Honor. Sustained.
BY MR. SZYMKOWICZ: Ms. Overdurff, I'm asking you to not look at
this, the final paragraph, but rather look at the paragraph before, which is the one I was asking you about. "This is a difficult situation, and it appears" that "there is no solution unless your neighbors are willing to stop smoking or one party or the other wishes to relocate." Since the Popovics weren't going to move; they weren't going to stop smoking, the only option that Mr. Schuman had, based on this letter, was that he had to move or deal with the problem? MR. FISHER: Objection, Your Honor. She can't
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THE COURT:
Is there anything in Plaintiff's 35
that says, in effect, Mr. Schuman move? MR. SZYMKOWICZ: THE COURT: No. Next question. I have I
Thank you.
read that a couple of times.
It doesn't say that.
would find as a fact that it does not say, Mr. Schuman, move. BY MR. SZYMKOWICZ: What option did GHI give, based on the Exhibit
35, other than to move? MR. FISHER: Objection, Your Honor. The
document speaks for itself. THE COURT:
She has talked about this. As I
Document speaks for itself. Sustained.
just said, I read it three times. BY MR. SZYMKOWICZ:
I direct your attention to Exhibit No. 36.
Would you agree that GHI found that the secondhand smoke in Mr. Schuman's unit was a hazard? MR. FISHER: THE WITNESS: Objection, Your Honor. The letter states that. It states
Secondhand smoke in the situation is considered a
hazard. BY MR. SZYMKOWICZ: So based on the entire Member Complaints Panel
process, after October 8, 2009, Mr. Schuman had exhausted
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all the remedies he had with GHI, didn't he? A. Well, as I said before, there are opportunities
to get involved; either serve on the Board; serve on a committee; you can take a matter to the membership by way of petition. Q. With regard to this specific problem, this
specific neighbor, he had done everything he could do, correct? A. No, that's what I'm saying. There were other
things that he could have done as a member to address the issue of secondhand smoke. Q. to this? What could he have done specifically with regard Could he have taken the dispute to the
membership and had the membership vote on it? A. smoke. Q. I'm not talking about the matter. I'm talking He could have taken the matter of secondhand
about the specific -- specific problem with Mr. Popovic? MR. FISHER: Objection, Your Honor.
BY MR. SZYMKOWICZ: Q. Could he have taken that to the membership? MR. FISHER: her the question. question. THE WITNESS: Yes, he could have done that at Objection, Your Honor. He asked
She should be entitled to answer the
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the next annual meeting.
Any member can place any issue Place it on a petition.
and place it on the agenda. Place it on the agenda. BY MR. SZYMKOWICZ: Q. A. meeting.
He would have to wait for another year? Any member can request a special membership That might be an extreme measure, but getting
involved on a task force or committee to explore the subject would have been something he could do to explore the matter, and share the information that he has learned with the Board and also help educate the Board, the membership. Q. I direct your attention to Exhibit No. 41,
specifically Ms. Lewis' comment? A. Q. All right. Specifically, this comment was, "This is the
first step in the member complaints procedure; next is an informal hearing; then a formal hearing if not resolved. Secondhand smoke is damaging, and it is nothing we have to discuss." What does Ms. Lewis mean by that? A. I don't know. MR. FISHER: THE COURT: You have to ask her. Objection. Sustained.
BY MR. SZYMKOWICZ:
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Q.
Doesn't that support Mr. Schuman's position that
the Board, the Member Complaints Panel, took it as a given that secondhand smoke was damaging? MR. FISHER: THE COURT: Objection, Your Honor. Sustained. I have no further questions,
MR. SZYMKOWICZ: Your Honor. THE COURT:
All right.
Cross.
CROSS-EXAMINATION BY MR. FISHER: Q. Ms. Overdurff, I believe you testified that GHI
believes that secondhand smoke has a possibility of causing harm based upon their review of the Surgeon General's Report provided, correct? A. Q. Yes. GHI -- GHI did not make a determination that
secondhand smoke, in all situations, causes harm to an individual, did it? A. Q. It did not. And in this case with Mr. Schuman, the Board of
Directors never made the determination that based upon what was presented to them, that in their view, this was, in fact, a nuisance to Mr. Schuman that required them to take action, did they? A. Not formally, no, they did not.
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Q.
They did go through the procedures as outlined
in the documents as set forth in the bylaws, did they not? A. Q. Yes. As part of those procedures -- I won't rehash We have already heard two days of testimony,
everything.
but in your view as GHI's representative, did GHI follow the procedures set forth in their their bylaws and governing documents? A. Q. Yes. Under GHI's governing documents, the nuisance
clause that Mr. Szymkowicz asked you about, it's ultimately GHI's Board of Directors that would make a determination whether they believe something was or was not a nuisance that required them to initiate some action to evict a member, correct? A. Q. Yes. And am I correct that you referred earlier; I
think you testified to the fact that GHI believed that Mr. Schuman's renovations could have contributed to or created a problem for him that they believe would resolve -- that they believe had been resolved before, correct? A. Q. Yes. That was because GHI did not hear from
Mr. Schuman about any complaints between 1998 and 2008, is
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that correct? A. Q. That is correct. And prior to them receiving the complaints from
Mr. Schuman, actually was January 2009, I believe, is that right, new complaints? A. Q. Yes, it was. Just prior to that in the middle of that time,
he was also doing renovations to his unit, correct? A. Q. Correct. I believe one of the letters that you sent on
behalf of GHS asked him to go back to his contractor to check on that issue specifically, did it not? A. Q. Yes. Did you hear back from Mr. Schuman specifically
about whether he went back and did any further testing with his own contractor? A. He didn't indicate that he did further testing.
I believe he did say that he spoke to his contractor. Q. Mr. Szymkowicz had asked you about the efforts He talked to you about the issues of, what
taken by GHI.
was it about sealing of the unit. You would agree that Mr. Schuman had asked that the association look into sealing the unit at one point back in 1997, '98, correct? A. Yes, I believe he did. Also, the Popovics asked
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us to look into it. Q. Okay. GHI responded by actually going in and
sealing -- taking action to seal and caulk in both units, correct? A. Q. Yes. And as part of the Member Complaints Panel
review process you testified to a little bit ago, there was action, action discussed about putting filters in the units as well, correct? A. Q. Yes, there was suggestions made. Correct. In fact, that suggestion was made to
Mrs. Popovic, Mr. and Mr. Popovic, to do some -- add some air filtration to their unit, correct? A. Yes. GHI received some information from the
Popovics that they would, in fact, install some additional air filters in their unit, correct? A. Q. Yes. During the process in '97, and let's say '98,
GHI was responsive to the information coming in from Mr. Schuman, correct? MR. SZYMKOWICZ: Your Honor, objection. Goes We
beyond the scope of my Direct, and it's irrelevant.
have admitted they didn't do anything, you know, wrong until 2007,'8. MR. FISHER: I'll jump ahead, Your Honor.
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Rephrase the question. BY MR. FISHER: Q. In 2008, when Mr. Schuman came to you, the
association was responsive to him immediately upon contacting you -- excuse me -- January 2009, when he contacted the association, the Board was immediately responsive, or your office was specifically in starting to look into these issues again when he raised them, correct? A. Q. Yes, that's correct. In fact, the committee actually even invited
Mr. Schuman to come with Mr. Repace to present information for the committee to consider, correct? A. Q. Yes, uh-huh. Then they also gave the opportunity for
Mr. and Mrs. Popovic to sit down with the committee as well to hear their information? A. Q. Yes. Essentially, GHI was following their process by
listening to both sides, the member complaints, to see what the situation was, correct? A. Q. Correct. And as part of that process, suggestions were
made and discussed about the additional efforts to, maybe, seal the units again, correct? A. Yes.
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Q.
And Mr. Repace, at the hearing; I believe he was
at the meeting you were at, which the minutes are here, discussed the fact that some efforts would assist in addressing the problems but it wouldn't resolve it, correct? A. Q. Correct. In fact, Mr. Schuman's letters following that
indicated that he was not interested in having sealing done to his unit because he didn't believe that would do anything to solve his problem, correct? A. Q. Correct. And Mr. Schuman was also unwilling to install
any additional HEPA filters or air filtration systems in his unit, correct? A. Correct. I don't believe that he ever installed
Q. A. Q.
Nor did he indicate -I don't know. Nor did he indicate or provide any information,
either through Mr. Repace or directly, with respect to what specifically he was asking GHI to do to help address the unit problems, correct? A. Q. Uh-huh, correct. Okay. And I believe Mr. Szymkowicz asked you;
there's no dispute that if somebody leaves the window
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open, that smoke can come in if the window is open, correct? A. Q. A. Q. Correct, yes. Could come in if the window is open, right? Yes. Mr. Schuman's complaints at that time were when
Mr. Popovic is on his patio smoking, when his window is open, smoke comes in, right? A. Q. A. Q. Yes. One of the issues? Yes. And he also presented information to the Board
and panel at that time that when he closed the window, it helped, correct? A. problem. Q. Ultimately, the letter that was referred to Well, yes, he closed the window to prevent the
earlier from Ms. Agans; then subsequently from you, when Mr. Schuman pushed for finding out what else the association can do, am I correct in paraphrasing, essentially, the association said, you don't want us to seal. You won't do anything else in your unit. If the
Popovics won't stop smoking, can't do anything else. There's really nothing else to do; threw their hands up at the situation essentially, correct?
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A.
Yes, they did.
It doesn't mean they didn't have
empathy for his situation, but there was no rule to protect, or there was no rule to prohibit smoking, and they did feel that they had no more that they could do. Q. And in this point in time, as any person can do
under the Mutual Ownership documents, Mr. Schuman had a right to, you know, try to resolve it with Mr. Popovic directly, correct? A. Q. He had a right, yes. As a matter of fact, doesn't the Member Handbook
start off, on page one, essentially encouraging or reminding everybody this is a neighborhood cooperative. We should work together as members to get along? A. Q. It does. That's somewhat throughout the whole idea of the
members procedures process where everybody comes together to try to find mutual resolutions, correct? A. That's one of the aspects of a cooperative, It's their
where people are encouraged to work together.
community, and the people have an opportunity to have an impact on things by getting involved. Q. And I think you said before that Mr. Schuman had
the opportunity to try to go to the membership if he wanted to propose a no smoking ban in the community, correct?
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A. Q.
He could have done that. How many -- I think you said there's 1600 units
in the cooperative? A. Q. That's correct. And of the 1600 units, there has been, I'm sure
in the course of time, several Member Complaints Panels that were convened such as this, correct? A. meetings. Q. Okay. And you think it's 17 years that you have That is correct. We had many different
been there, is that right? A. Q. Yes. The 17 years, how many of them have resulted to
the point where a member had to litigate to get resolution? A. To my recollection, this is only the third case
that we have had of litigation. Q. A. Q. In 17 years? Yes. So, essentially, with all the complaints that
you received, generally the members are able to work it out? A. Q. Most of the time, we can resolve them, yes. As the cooperative in any other situation
will -- let me withdraw the question.
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MR. FISHER:
Court's indulgence, Your Honor?
(Off the record discussion ensued.) MR. FISHER: THE COURT: MR. POPOVIC: No further questions, Your Honor. Mr. Popovic. No, I don't have a question.
THE COURT:
Redirect. REDIRECT EXAMINATION
BY MR. SZYMKOWICZ: Ms. Overdurff, as GHI, what did the other
litigated cases involve that you just referred to? A. We had a case of a member who competely tore
apart her house and refused to put it back, and it started with -- it was a very complicated case. It started with a
nonpayment issue and countersuit, and then the second one -Q. Did that go through? I don't mean to cut you
Did that case go through a Member Complaints Panel? Well, it was in process when I was hired; so, we Yes, it did, but not initially. Was it GHI,
actually did. Q.
And who brought the complaint?
itself, that brought the complaint or was it a member? A. Q. A. GHI brought the complaint. So how did that resolve itself? It was resolved in GHI's favor, and ultimately,
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the member was evicted from her home. Q. violate? A. There were quite a few: nonpayment, failure to And what rule, what GHI rule did the member
maintain her home. Q. A. Okay. The second case?
The second case was brought by a member who was
evicted for cause; for not paying; making his monthly co-op fee, and so he sued for repossession of his home and for damages. Q. A. Those were both nonpayment issues? They were nonpayment issues, but they also
involved other issues. Q. No. 30. A. Q. A. Q. All right. You wrote this letter to Mrs. Popovic, right? Yes. And I direct your attention to paragraph two. I direct your attention to Plaintiff's Exhibit
You repeat the nuisance clause in the Mutual Ownership Contract, and then you state, quote, "This paragraph covers any act or behavior which would annoy or inconvenience ones neighbors; which could be interpreted to include unwanted or secondhand smoke infiltration. A
court of law considers secondhand smoke to be a nuisance;
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therefore, one might interpret this section to apply to smoking." A. Q. A. Period. Okay. What did you mean by this statement? Let me explain that this letter was written on
my behalf; not at the direction of GHI, to Mrs. Popovic. She had called to ask me if I would put in writing whether or not it was legal for her to smoke within the home, and we had a number of conversations about the problem and the situation, and this letter was an attempt to make her aware or to put some pressure on her that they really should consider how they could contribute to a solution of the problem by stopping smoking; so, it was my word to her and my way of trying to get her to see some reason about this situation. Q. You would agree that Mrs. Popovic, by extension
Mr. Popovic, were trying to find out from GHI if they could smoke? doing -MR. FISHER: THE COURT: Objection, Your Honor. Go ahead. Would you agree with that, that they were
BY MR. SZYMKOWICZ: Q. -- that they were doing everything that they
could do to ensure that they followed the GHI rules? MR. FISHER: Objection, Your Honor. Calls for
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speculation, what the Popovics thought or were thinking. THE COURT: THE WITNESS: Go ahead. I think she testified in the
meetings that they had that they wanted to follow the rules, and that's why she was asking whether or not -- she just wanted to be sure that there was no prohibition in GHI about smoking. BY MR. SZYMKOWICZ: Q. And you are not aware, as GHI, of any facts that
would indicate that the Popovics were not trying to follow GHI's rules during this entire process, did they? A. No. I think they were wanting to be
cooperative, and they wanted to be good neighbors. MR. SZYMKOWICZ: Your Honor, I'm done, with the
limited exception of would the Court accept the deposition transcripts of GHI and Ms. McFadden that we read from into evidence or my reading of it sufficient? THE COURT: the record. MR. SZYMKOWICZ: questions then. THE COURT: MR. FISHER: Recross. Just briefly, Your Honor. Okay. I have no further The reading was sufficient. It's on
RECROSS-EXAMINATION BY MR. FISHER:
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Q.
Ms. Overdurff, the same letter, Plaintiff's
Exhibit No. 30, you also reminded Mrs. Popovic in that letter, essentially, that a rule could be adopted at some point to ban smoking if the membership so desired, correct? A. Q. Yes, I did. That has not happened to date, has it? No rule
been adopted to ban smoking in the cooperative residential units or the common areas outside their units? A. No, there is no rule. At one time, the Board
did discuss putting together a task force to look at this issue when this lawsuit occurred; then we were advised to just maybe hold on as for the time being. get a lot more information. Q. So the Board, if the membership so desired to We needed to
move forward with that project, the Board, as with any other rules that the Board would consider, and put it to vote with the membership if they wanted to? A. Absolutely. MR. FISHER: THE COURT: No further questions. Anything based on that? No, Your Honor.
MR. SZYMKOWICZ: THE COURT: MR. POPOVIC: THE COURT:
Mr. Popovic. No. You talked earlier about the sealing
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of the unit in the 90's and then the tearing down, partial removal of the kitchen wall in 2008 or '9. inspect any of that yourself personally? THE WITNESS: No, I didn't personally with 1600 I got engineering on Did you
members and a lot of things to do.
staff that do that, but I spoke with them on a regular basis; saw all the photographs that were provided, and I spoke with people who did inspect. THE COURT: personally go there? THE WITNESS: THE COURT: No, I did not. Okay. Anything based on that? You saw photographs, but you didn't
Anything based on that? Thank you, ma'am. MR. SZYMKOWICZ: Mr. Repace. matter. You may step down. Your Honor, our next witness is
It might be a good time to do a housekeeping
Obviously, the Court took judicial notice of the We filed the second motion for Judicial
2006 report.
Notice; to simplify his testimony, it might be advisable. THE COURT: report. MR. SZYMKOWICZ: Remember, Your Honor, it was It's not the whole Opportune time to deal with the 2009
only the sections that I quoted to. book. THE COURT: I understand.
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What is your feeling on the 2010 report? MR. GOECKE: If I may, Your Honor? I think one
of the big differences between the 2006 and 2010 report is that Mr. Repace was cited in the 2006 report. He has not To the
been in the 2010 report; so, it remains hearsay.
extent that they want to submit portions of it that are not in dispute; frankly, I don't know which portions they have alluded to right now; maybe as we get to it in the testimony, we can make a decision. MR. SZYMKOWICZ: Your Honor, we have gone
through with Mr. Goecke -- every time he says that, I point out they are numbered paragraphs what we are trying to prove. We can admit the entire 1600 pages of the I'm sure the printing companies
Surgeon General's Report.
would love that, but I don't think that's necessary. THE COURT: Well, in fact, when the issue came
up last week or whatever it was, and I took those two exhibits with me, I looked at both of them. I thought I
was ruling then that I was going to take judicial notice of both of them. I'll make it official now that I'll take I don't see any problem
judicial notice of both of them.
with their authenticity, reliability or anything else. They are obviously -- I'll take judicial notice of both of those. MR. GOECKE: Just to be clear, Your Honor,
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that's subject to the restrictions you put in your order? THE COURT: Yes. And another housekeeping
MR. SZYMKOWICZ:
matter, does the Court wish to retain, which it's more than welcome to do, the actual books? THE COURT: I think that would be best. Okay. That's fine. Is this it? They are
We have copies?
MR. SZYMKOWICZ: so big.
We have them on PDF.
Mr. Goecke has it PDF.
Presumably, Mr. Popovic
does as well.
They are available on the internet. That's another thing. Anybody can
THE COURT: get them.
Ultimately, you'll get these back. MR. SZYMKOWICZ: THE COURT: MR. GOECKE: THE COURT: (Recess). THE DEPUTY CLERK: (Witness sworn). THE DEPUTY CLERK: Thank you. You may be Please raise your right hand. Mr. Schuman's copy but, yeah.
You'll get it back some day to come. Thanks, Your Honor. Take ten minutes.
seated. Please state your first and last name and spell them for the record. THE WITNESS: James, James Repace, J-A-M-E-S,
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R-E-P-A-C-E. THE DEPUTY CLERK: Thank you.
JAMES REPACE, a witness produced on call of the Plaintiff, having first been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. SZYMKOWICZ: Q. A. Tell the Court about your formal education? After High School, I went to -- I attended the I graduated
Brooklyn Polytechnic Institute in New York.
from there with a Bachelor's Degree in Physics and pursued a Master's Degree there as well, which I got around 1968. And then I took Post Masters courses at the University of Maryland in College Park for a year. And then I got a
Thomas Edison Fellowship from the Naval Research Laboratory; attended Catholic University, the American, Washington, D.C., Predoctoral studies in physics ending around 1972, I think. Although I never wrote a thesis, I
completed all my course work for a PhD in physics. Q. Why didn't you ever fulfill the final
requirement? A. Basically, my branch chief said I was too badly
needed on research projects that I was working on, and if I wanted to pursue a thesis, which would basically take me full-time, I could do it on my own dime, and I had four
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children at the time, and I was really unwilling to do that. Q. A. Q. college? A. My first two jobs were in hospitals in the City I worked How many kids do you have today? Six. Tell the Court about your work experience after
of New York and Westchester County, New York.
one summer in the Biomedical Clinic at Grasslands Hospital, and I worked on the radiation dosimetry in patients, high doses of radioactive doses of chemicals for patients and did scans on their thyroids and other organs for tests of thyroid malfunction and also for pernicious anemia. And then I got a full-time job as a health physicist working for the Physics Department for the City of New York, and I worked there for the City of New York. I worked there a little over a year. I did calibration of
the -- of the big two million volt X-ray machines, the cobalt sixty machines. I ran the film badge service for
the City of New York, which is personnel dosimetry for ionizing radiation. I worked in the operating room once a
week measuring the dose to the patient for radium inplants to uterine carcinoma. Gave lectures to the medical
residents on radiation physics and and the like.
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And then I changed fields, and I went into insulator physics. I worked for three years at RCA David
Sarnoff Research Labs in Princeton, New Jersey. Basically, I was the apprentice to two PhD scientists, and I built scientific equipment. I did research on the It's a television
operation of Vidicons, V-I-D-I-C-O-N-S.
picture camera tube, and I did high vacuum experiments, and I grew crystals and things like that. Then in 1968, I got my Master's Degree, and I went to work as a research physicist at the Naval Research Laboratory here in Washington, D.C., and I worked there for eleven years. About the first two years, I worked in
the -- what they call the Nuclear Oceanography Branch, and I did experiments mainly focused on measuring the half lives of radioactive elements, which I made radioactive in nuclear reactors or linear accelerators, and I published a paper on that. And then I switched over into the electronics division, where I did radiation effects in semiconductor devises. This is ionizing radiation, nuclear radiation,
and the goal of our research was to harden the circuitry of satellites and missles so that they could survive either respectively the Van Allen Belt, which is a high radiation belt around the Earth, or a nuclear burst that might occur in a space that would knock out a missle, and
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so I did that research.
I published about four papers.
And then in 1979, I decided to change fields again, and I went to work for the United States Environmental Protection Agency in Washington, D.C., and I was hired as a senior policy analyst in the Air Policy Staff of the Assistant Administrator for Air, Noise and Radiation. Assistant Administrator is the person who
basically is in charge of all the nation's air programs, all the regulatory air programs, and my job, when I got there, was to provide advice, scientific advice to the assistant administrator and, basically, I operated with a high degree of autonomy, and I was encouraged to find my own projects to work on. And I was only given one
admonition, "Never give bad advice to the decision maker." So the projects I decided to work on in the beginning were polluting gases in the air, which are called criteria air pollutants, such as nitrogen dioxide, which damages the lung, carbon monoxide, which, of course, reacts with the blood to starve the body of oxygen, and hazardous air pollutants, such as arsenic, chromium 6, coke oven emissions, which can cause cancer, and basically on those issues. I reviewed the work of the Air Programs Office of Research and Development, who did risk assessments for us; basically under contract. When we asked them to do a
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risk assessment, I would review the risk assessments for accuracy and for general policy issues. And I also initiated, at my own, on my own dime, essentially, a project that dealt with indoor air pollution, and we, at my initiation, we established an interagency working group on indoor air pollution, which initially involved EPA and The Department of Energy, but later grew to encompass about forty federal agencies, and I believe it's a formal working group now since about 1987 and still involves the -- there's a whole division at EPA that does indoor air pollution, and they also do indoor air pollution research. In addition to that, in Nineteen -- I guess it must have been the early 1980s, I did a risk assessment of passive smoking and lung cancer. It was the first one
that had ever been done, and it -- I wrote a report on it, which I submitted to a scientific journal, peer-reviewed journal, and it got a lot of publicity. EPS's administrator became -- Assistant Administrator became very interested in the topic, and we funded a report at the National Academy of Sciences, which identified secondhand smoke as a carcinogen, and also back to back the Surgeon General's Report came out in 1986, involuntary smoking, which also identified secondhand smoke as a human carcinogen in agreement with the paper
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that I had published in 1985. After that, I initiated a research project with the USEPA's Office of Research and Development to do a formal risk assessment that would be agency sponsored for our program. I didn't have any hand in writing that, and
that was published by EPA in 1992, I think, and it identified secondhand smoke as a known human carcinogen, and so, at that point, there were three reports out which identified secondhand smoke as a human carcinogen. The
National Institute for Occupational Safety and Health also, at that time, issued a report saying it was a workplace carcinogen, and then the National Cancer Institute did a preprinted EPA report as The National Cancer Institute Monograph, thereby endorsing it. was around 1990. In Nineteen Ninety -- I think it was 1996, the California Environmental Protection Agency put out a voluminous record identifying secondhand smoke not only as a human carcinogen, but indicating that it also caused a large number of heart disease deaths, many more than the lung cancer deaths. And the, I believe it was in 2000, the National Institute of Environmental Health Sciences produced a report again agreeing that it was an overwhelming amount of evidence that secondhand smoke was a human lung That
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carcinogen, and it's been in all the subsequent reports by NIEHS. And in 2006, the Surgeon General's Report identified a lot of other diseases that were caused by secondhand smoke. The California EPA added breast cancer
to the list mainly in women, and then, of course, there's the 2010 Surgeon General's Report, which came out on mechanisms, and in all of the previous reports up until the 2010 report, every report that has ever been done on secondhand smoke has quoted my work. 2006 report, Surgeon
General's Report, quotes my work nineteen times. Q. cite you? A. Basically, because -MR. FISHER: THE COURT: Objection, Your Honor. Sustained. Why didn't the Surgeon General's 2010 Report
BY MR. SZYMKOWICZ: Q. Do you know the Surgeon General's 2010 report
dealt with the same kind of issues that you had studied? A. Q. A. Q. A. No, I do know that it did not. Okay. And how did it differ from your work?
It's all on mechanisms. I don't know what that means? It's the mechanisms of how tobacco smoke and That's not my research
secondhand smoke cause disease.
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area. Q. A. What is your research area? My research area is on exposure to secondhand
smoke, the dosimetry of secondhand smoke, and the risk assessment of secondhand smoke. Q. Do you have any education, training or
experience in the field of measurement of secondhand smoke? A. Yes, basically, I developed the field. I
published now about seventy-five papers, scientific papers on secondhand smoke exposure, dose risk and control, and of those, a large number deal with the whole issue of exposure to secondhand smoke, and I have done extensive measurement, field measurement of secondhand smoke. Q. Do you have any education, training or
experience in the evaluation of how secondhand smoke travels through the air? A. Yes. I have published mathematical models which
enable me to predict the concentrations of secondhand smoke indoors and outdoors. Q. Do you have any education, training or
experience in the identification of the dangers of secondhand smoke? A. Yes, I have published several papers to that
field that -- the risks of secondhand smoke, and the
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mortality from secondhand smoke from lung cancer and heart disease. Q. Do you have any education, training or
experience in the mitigation of the dangers of secondhand smoke as it travels through the air? A. Yes, I published papers that deal with the
effectiveness of ventilation systems on the control of secondhand smoke. Q. Do you have any education or training or
experience in the evaluation of how secondhand smoke travels through enclosed spaces? A. Yes, those are the indoor mathematical models
that I have published. Q. Do you have any education, training or
experience in the mitigation of dangers of secondhand smoke as it travels through enclosed spaces? A. Q. I think I just answered that question. The first one was -- strike that. Do you have
any education, training or experience in the evaluation of how secondhand smoke travels through outdoor spaces? A. Q. A. Yes, I published a model on that as well. When was that? I'm sorry; I didn't publish it in a journal. I
developed a model on that. Q. Do you have any --
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A.
I have done research and reports for clients
such as the University of Maryland at Baltimore. Q. A. Anybody else? I have worked with a group at Stanford
University and the Department of Civil Environmental Engineering. They have published a model as well, and in
my work done in this case, I compared the predictions of my model to theirs, and they do agree. Q. Do you have any education, training or
experience in the mitigation of the dangers of secondhand smoke as it travels through outdoor spaces? A. Q. Yes. Do you have any education, training or
experience in the identification of the health effects of secondhand smoke? A. Yes, I have published papers that, or coauthored
papers that deal with risk assessment of secondhand smoke on lung cancer, on heart disease and on respiratory disease. Q. Have you ever testified as an expert witness in
a court of law or judicial proceeding such as a legal hearing, trial, deposition or arbitration? A. Q. A. Yes. How many times? On secondhand smoke, about fifty to seventy-five
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times. Q. A.
I don't keep count. Have you testified in Court that many times? No. Arbitrations generally don't go to Court,
obviously.
I would say in Court, maybe a dozen or It's been over -- since
eighteen times over the years. 1981. Q.
In what subject areas have you previously
testified as an expert? A. Generally, about the risk of secondhand smoke
and the exposure to secondhand smoke. Q. A. Q. expert? A. Q. No. You testified in this very Courtroom a year ago Has any Court -I'm sorry; control of secondhand smoke. Has any Court ever found that you were not an
in this very case, correct? A. Q. today? A. Q. No. 3. A. Q. Yes. I'm showing you what has been marked as Exhibit Have you ever seen that document before? I have. What is that document? I did. Did you bring your curriculum vitae to Court
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A. Q. A. Q. that? A.
That's my curriculum vitae. Is that document up to date? No, it's close. It's May 2010.
Is there anything that you would like to add to
Just a couple of things, I think.
I gave a
paper on secondhand smoke in casinos. At the -- I'm thinking it was the 14th International Meeting of the Society for Indoor Air Quality and Climate; they had their meeting this year in Austin, Texas, and I gave a paper there. Q. A. Anything else to add to the CV? I have given newspaper interviews, but I don't
recall in detail what they were. MR. SZYMKOWICZ: Your Honor, I move this
document into evidence as Exhibit No. 3. THE COURT: MR. GOECKE: THE COURT: Any objection? No objection, Your Honor. It will be admitted.
(Plaintiff's Exhibit No. 3, previously marked for identification, was admitted into evidence.) MR. SZYMKOWICZ: Your Honor, I move to certify
Mr. Repace as an expert witness in the field of identification and description of secondhand smoke; number two, the measurement of secondhand smoke; number three,
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the study of how secondhand smoke travels through the air both outside and within the enclosed spaces; and number four, the dangers of secondhand smoke with regard to the health of those who breathe in the secondhand smoke, and finally, number five, the mitigation of the dangers of secondhand smoke as it travels through the air both inside and within enclosed spaces. THE COURT: MR. GOECKE: Voir dire? I would, Your Honor. Thank you.
Good afternoon, Mr. Repace. THE WITNESS: Good afternoon, Mr. Goecke.
VOIR DIRE EXAMINATION BY MR. GOECKE: Q. I would like to focus on your specific You
qualifications as they relate to secondhand smoke.
said you published about seventy-five papers on secondhand smoke? A. Q. reviewed? A. Q. That's a good estimate, yes. Peer-reviewed papers are when they undergo That's correct. About a third of those have not been peer
scrutiny from other people in the field to make sure the articles are accurate and reliable? A. Yes.
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Q.
The papers you talked about for risk assessment,
in those papers you analyzed risk to a group of people or populace of peoples, isn't that correct? A. Q. Yes. They weren't focused -- for example, when you
worked for the government, you didn't focus on specific individuals when you would do a paper? A. Q. No. Generally, we focused on populations.
Your methodology to determine risk for populace
places or for groups of people? A. Yes, occasionally they were based on rather
small studies and workers that showed increased risk of cancers; for example: Q. A. coke oven workers.
What are other types of workers? People who work with plating, such as chromium
plating or arsenic smelters, where's there's arsenic in the ore, things of that nature. Q. And these studies would take samples of the
levels of exposure that these workers had? A. could. Generally, they would to the extent that they Sometimes they would estimate exposure using
mathematical models. Q. So it wasn't always actual samples. Sometimes
you had to rely on mathematical models to -A. To estimate the levels of exposure, yes. The
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disease was incontrovertible. Q.
People had the disease.
And so you would look at groups of workers and
determine what portion of them had a certain disease? A. Right. You would compare them with control
workers without the disease, with or without disease who are not employed in that field, and you make a comparison. In some cases, for example, with asbestos, people work with asbestos, the tumors are so unusual or there were certain kinds of tumors of the lung which only occur from exposure to asbestos, and so mesotheliomas, and therefore, you didn't need to know what the exposure was. You just simply needed to know whether the people had contact with asbestos or not. Q. But aside from rare circumstanceless like
mesothelioma and asbestos exposure, with most illnesses you can't determine what caused cancer, can you? A. You can do mechanistic studies in animals, and
expose them to different levels of a carcinogen and see if the increasing amount of exposure produces an increasing number of animals who are cancerous or come down with some other disease until you get what we call either exposure-response or dose-response relationship. Q. That's exactly what I'm going to get to in this
voir dire, but the studies you conducted on populaces, epidemiological studies, they look at the rate of cancer
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or injury in a populace? A. Q. Yes. So for those individuals in that populace that
you analyzed, you don't know, for certain, what caused their illnesses? A. We know that certain agents, environmental
agents are capable of causing cancer. Q. A. Q. A. Q. That's not my question, Mr. Repace? So we know what causes them. Mr. Repace, that's not my question. Yes. I'm asking for the people involved in your
studies, you didn't know, with any scientific certainty, what actually caused their injury or fatality? A. What you know with scientific certainty is that
the person either has the disease or doesn't have the disease. Q. A. Sure. Then from that, you have to work backwards to
determine what the exposure was; so, yes, it's a statistical method, in general, that is employed by epidemiologists to make a determination of whether something causes a disease or is capable of contributing to multiple ones, you know, the multiple causes of that disease.
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Q.
For example, with coke oven workers, they have a
higher incidence of what? A. They have a higher incidence of lung cancer due
to exposure to polycyclic aromatic hydrocarbons that are in the coke oven gases that come off. steel mill. This is in the
They use these coking ovens to heat up the
steel, and so you look at; you compare those workers to other workers who are not working on the coking ovens; who may work in the steel industry, and you look at the differences on lung cancer. In the case of tobacco smoke, you look at the, you know, the cigarettes that people smoke, and you make the inference that you see an exposure-response relationship between the number of cigarettes and various diseases, and you make the conclusion that cigarettes cause disease of various kinds. Q. The larger the pool, pool of the people, I
assume the more accurate the epidemiological study is going to be? A. Q. In general, that's correct. Because there's all kinds of variables could
lead to disease? A. Q. Yes. If we took one of those coke oven workers in
your study who suffered from lung cancer, there are a host
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of reasons that might lead -- or host of causes, rather, that might cause him to have lung cancer? A. There are, but you would have to look at what
the exposures were to decide what among those causes might have caused that. Q. A. Q. If he was a smoker, that might contribute to it? It might, yes. If he worked in an industry that involved
exposure to asbestos, that might contribute to it? A. Q. It also might do that, yes. So for any one person, just because there's a
higher incidence of lung cancer within the coke worker populace, we don't know for certain what caused that individual's disease? A. No. All you can say is that it was either a
contributory element or it increased the risk, and then you have to do a competing risk analysis to determine whether, in a given case, whether a given agent was the proximate cause of the problem or whether you can't tell or it was something else. Q. A. You have no medical training, is that right? I have no formal medical training. I have
certainly read medical textbooks, and I have an appointment as a Visiting Assistant Clinical Professor in the Tufts University School of Medicine in the Department
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of Public Health. Q. A. Q. A. Q. medically? A. Q. No. People don't come to you and say, I'm sick. I'm sorry; you have had no formal training? No formal training. So you are not a nurse; not a doctor? I'm not. You are not qualified to examine someone
What happened to me? A. Q. Correct. Likewise, you are not qualified to testify about If someone doesn't feel
what conditions someone has?
well, you can't determine what it is that they suffer from? A. Q. A. That's not what I do. That's correct.
And you are not a toxicologist? I have studied toxicology, but I'm not a
toxicologist. Q. A. Q. A. Q. A. Where did you study toxicology? Read books. No formal toxicology training? No. Are you an epidemiologist? No, but I published in the field.
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Q. A. Q. A. Q. A. Q.
Peer-reviewed publications? Yes. How many? Probably about four. Are you Board certified in anything? No. And you have not reviewed Mr. Schuman's medical
records because that's outside the area of your expertise? You are not -A. Q. That's correct. -- qualified to testify about any medical injury
that Mr. Schuman has suffered? A. Q. A. Any real medical injury, no. Any medical injury? No. I can testify as to what risks of medical
injury might be, but I'm not going to diagnose Mr. Schuman. Q. You can testify about what harms he may suffer
from some day? A. Q. Correct. You can testify about if a group of people were
exposed to the same levels of secondhand -- excuse me -secondhand smoke Mr. Schuman was exposed to, you can calculate a risk assessment, what that populace, what it might lead to in terms of their disease?
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A. Q.
That's correct. You couldn't guarantee with certainty what is
going to happen to Mr. Schuman or not? A. Q. A. Q. A. Q. nuisance? A. Q. No, I couldn't. Likewise, you are not qualified to give legal No. You're not a lawyer, are you, Mr. Repace? I'm not. You are not an expert in the law? I'm not. You couldn't tell us the legal definition of
opinions about secondhand smoke? A. Q. A. Q. Not a legal opinion, no. Nor could you opine? I can give you a scientific opinion. Sure. Let me clarify that you are not qualified
to opine on the status of case law on secondhand smoke? A. Q. That is correct. Is it fair to say that a large focus of your
work currently is on eliminating secondhand smoke from different environments? A. I devoted a large portion of my career to doing
that because I feel it's harmful, and that my work has demonstrated that it's harmful, and I have been invited by
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many organizations, including medical organizations, to testify -- not to testify, but to lecture on the exposure dose risk and control of secondhand smoke. Q. And you do that through education, through
presentations and through studies, isn't that right? A. Q. That is correct. But by protecting people from secondhand smoke,
you don't go and seal buildings, do you? A. Q. A. No. You are not an engineer? No, I may be qualified to understand various
engineering interventions because I have been trained in physics, and that it does encompass a good deal of electrical, and medical engineering and so forth, but it's not what I do. Q. Uh-huh. I appreicate that you are a very well
educated, distinguished individual, but you don't go into buildings and protect them from secondhand smoke infiltration physically? A. Q. A. Q. No, nor is it possible really to do that. I don't want to talk about if it's possible. That's not what I do, that is correct. You don't inspect HVAC units to see how they
could be improved? A. No. I have done inspections of HVAC units, and
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I have done building inspections of ventilation systems for indoor air quality investigations, particularly, when I was at the EPA, but it's not what I do for a living. Q. And just to get this on the record, you are not
a contractor or plumber either? A. Q. I'm not. And in this case, you did not attempt to install
anything that would have improved the air quality in Mr. Schuman's unit, did you? A. No. MR. GOECKE: Your Honor, at this time, I would
like to object to some of the categories that he has been proffered for as an expert; two of them in particular. Mr. Repace, he admits that he's in no way qualified to determine specific injury of this Plaintiff in this tort action. He can talk about risks of groups of people to That's what he's an expert in,
groups of population. methodology in.
The only only time he studies potential risk to an individual is in litigation, but that's not his background. That's not his expertise. That's not what he
studied; that's not what he's been employed for for many, many years; so, to the extent he wants to talk about how a group of people exposed to these levels of secondhand smoke could be an at-risk population, that's fine, but
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that's not what he's trying to do here. What he's trying to do is take that; spin on it. He's assuming Mr. Schuman is a group of this population. He has nine, ten or twenty, whatever he's going to say, risk of contracting a disease, and that's simply what his background is. Not only is he unqualified to talk about any injury to Mr. Schuman. He's unqualified to talk about any I
risk specific to Mr. Schuman; only about a population. think that's very important here; likewise, although he studied HVACs and installations, ways to mitigate secondhand smoke, he doesn't do that for a living.
If he wants to talk about what the studies found in terms of what works; what doesn't work, that's fine, but if he's going to try to testify what would have worked in this situation, I think that's wholly inappropriate, and we object to that. I will accept him as an expert for identification of what secondhand smoke is, measuring secondhand smoke in a location, and I guess, to a certain extent, the movement of secondhand smoke through the air; although, he testified that he has had no published studies outside travel of secondhand smoke. Thank you. MR. SZYMKOWICZ: Your Honor, I have got some
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follow-up questions based on Mr. Goecke's questions. THE COURT: All right. DIRECT EXAMINATION (Continued) BY MR. SZYMKOWICZ: Q. A. Q. A. Mr. Repace, are you a member of ASHRAE? I am. What is ASHRAE? American Society of Heating Refrigerating and
Air Conditioning Engineering. Q. A. How did you obtain your membership in ASHRAE? I applied for membership, and you have to be
recommended by an ASHRAE member, and they review your qualifications, and then they either accept you or they don't. Q. A. Q. They accepted you? They did. And what are the areas that you believe entitled
you to membership in ASHRAE? A. Really, it's the effect of secondhand smoke on
ventilation, and I have been involved with the ASHRAE process as an advisor to ASHRAE since, gosh, probably 1980. Q. Do you believe that ASHRAE has published any
papers on secondhand smoke? A. They have published some of mine, yes, and they
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have -- basically, I was the first one to say that ventilation could not control secondhand smoke, and ASHRAE has endorsed that position. Q. And is ASHRAE's position paper -- with regard to
the secondhand smoke in buildings, was that paper credited by the Surgeon General in the 2006 report? A. well. Yes, the Surgeon General also quotes that as That's generally accepted by the medical and
engineering communities; ventilation is not a control measure and cannot be a control measure. Q. And the ASHRAE -- that particular ASHRAE report
is, aside from the Surgeon General's Report, is one of the leading authorities in this field, correct? A. American Society of Heating, Refrigerator and
Air Conditioning Engineers is the leading international authority on ventilation, that is correct, international organization. Q. But the question I asked you, that paper that
they wrote that is cited by the Surgeon General, that is one of the authorities in this subject field area, is that correct? A. That is correct. They used to recommend
ventilation rates for buildings with smoking I believe up until 2001, and then after that, they decided that they couldn't, in good conscious, recommend ventilation
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rates for smoking buildings anymore. MR. GOECKE: THE COURT: Objection, Your Honor. It's all right.
BY MR. SZYMKOWICZ: Q. Do you believe you can testify as to the damages
you would expect to find in certain individuals exposed to secondhand smoke based on their exposure? MR. GOECKE: THE COURT: THE WITNESS: Objection, Your Honor. He can answer that. Yes.
BY MR. SZYMKOWICZ: Q. A. Why is that? Because when you are dealing with a publication,
you have to deal with epidemiological studies as they are to determine what the risks are. Then the only time you
really are concerned with an individual is when there's generally an injury or threat of injury or fear of future injury, and it's in a legal case; so, normally, you don't get to deal with those issues except in cases like this. Q. So to clarify, you believe that you can testify
as to specific damages you expect to see in specific people when exposed to specific instances of secondhand smoke? THE COURT: THE WITNESS: Risks. Risks, yes.
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BY MR. SZYMKOWICZ: What about damages? Can you relate the damages
that people may present with any risks or models that you have? A. Let me clarify. If Mr. Schuman came down with
disease, I couldn't tell you whether that particular disease was caused by a particular exposure or not. That's a medical doctor's issue. What I can say is that this exposure increased his risk or probability that he could incur such an injury or that he has a future risk of that. Whether he would
get that or not really depends on his genetic makeup and his current susceptibility, and you would need a medical doctor for his specific issue, but I could say that a person in Mr. Schuman's shoes, so to speak, would suffer an increase in risk, and a certain percentage of those would very well be subject to a risk. Also, there's the issue of cumulative dose. You
can have a large exposure for a short period of time and that can cause a disease because you have exceeded some threshold. You can also have a very low exposure over a
very long period of time and have the same total dose at the end of that period, and an individual could get sick from the chronic exposure; so, you can talk about exposures and risk of disease in that context. I'm not
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saying that I am diagnosing a problem in Mr. Schuman specifically. I can just say that an exposure would
increase his probability of contracting this disease relative to if that exposure were absent. do. THE COURT: MR. GOECKE: Any questions based on that? I do, Your Honor. Thank you. That's what I
VOIR DIRE EXAMINATION (Continued) BY MR. GOECKE: Q. First of all, Mr. Repace, just because a
document has been published doesn't mean, necessarily, it's been scientifically accepted, does it? A. Depends on whether the paper is widely cited.
If it is, then it's -- that's one of the tests of its scientific acceptance. Q. A. So your answer, it depends? You can tell generally -- a scientist can tell
if his work is accepted or not. Q. But my question to you, publication, by itself,
prove that something is publicly or scientifically or widely accepted? A. Q. A. Q. Not necessarily. You are not an epidemiologist? I have published in that field. But you are not Board certified in epidemiology?
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A. Q.
No. Now, you are taking those methods, those
studies, these papers you published; you are trying to find out what the increased risk is to an individual; not to a population; to an individual? A. Q. Yes. That's a perfectly legitimate exercise.
Isn't the study of epidemiology focused on
populaces and not individuals? A. For certain diseases. For other diseases, it's If a coke
focused on relatively small groups of people.
oven worker comes down with lung cancer, for example, then somebody has to make an evaluation of whether that disease was caused by his occupational exposure or some other factor; for example, his smoking. If he happens to be a
nonsmoker, then very likely the presumption is going to be this in a medical community; a medical board could determine that his lung cancer would qualify for an occupational, you know, rating. disease. Now if he smoked, it might not. Q. If an individual dies from lung cancer, what is That's an occupational
the best way to determine if that's true or not? A. Well, the best way to determine if the cause of
his death was lung cancer is by doing a biopsy and examining the lung tissue for certain types of tumor
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cells. Q. If someone is sick, isn't the best way to
determine what caused their illness to examine that person? A. Q. Well, sure. What's the smallest group -- you said sometimes What is
epidemiology applies to small groups of people.
the smallest epidemiological study you have ever seen in terms of group size? A. I think they have looked at groups of workers,
for example, with bladder cancer; maybe only a few dozen over a period of years so -Q. A. Q. A. Do they ever look at one person? I'm sure they did. But you are not aware of that? I haven't reviewed all the studies on bladder
cancer from occupational exposure, but I'm very well aware that there are such studies, and I know what agents are suspected of inducing bladder cancer; what they found what the latent tendency is; so, I read the literature. You know, if Mr. Schuman were to come down with bladder cancer from exposure to secondhand smoke or, you know, punitively from exposure to secondhand smoke, I could do an exposure in this assessment for that, and I have done that in legal cases but, you know.
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Q. A. Q.
Thank you. It's an issue we are really dealing with here. If I may ask the questions here. Can you tell me the name of one study,
epidemiological study, that only had one subject, only had one person? A. I'm sure there have been medical studies that
are base -Q. Not a medical study; epidemiological study. They are never on one person, is that
They don't exist. correct? A. person. Q. A. Q.
No, you wouldn't do an epi study with just one
Thank you. This is not an epi study I'm doing. You are here today to only testify about a
possible risk of harm to Mr. Schuman, isn't that right? A. No, I'm here to testify on two issues. One is
his potential future risk from exposure; to put the risk of his exposure in perspective, and secondly, what the level of irritation is from his measured exposure to secondhand smoke. Q. A. What his level of irritation is? What the level of irritation of a person like
Mr. Schuman would be, and I match this up to what his
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complaints are to be able to judge whether the secondhand smoke is capable, based on the available literature, of causing that problem. MR. GOECKE: Hearing that, Your Honor, I still
don't think he's established any basis to talk about the future risk of harm to Mr. Schuman. For the most part,
Maryland law is clear that speculative damages are not compensable. If Plaintiff wants to concede he has no injury in this case, that's fine. If their only injury is the He cannot
potential for injury, I think the law is clear. collect under that theory, Your Honor. THE COURT: five areas stated.
I'm going to admit him under all
Some of the testimony I -- may be
objections along the way to specific testimony, but I think he can certainly talk about the risks; certainly has the expertise well beyond the layperson in all five areas. That's been demonstrated. objections along the way. MR. GOECKE: Thanks, Your Honor. I'll admit them; may be
DIRECT EXAMINATION (Continued) BY MR. SZYMKOWICZ: Q. A. What is secondhand smoke? Secondhand smoke is the smoke from the burning
end of the cigarette, about eighty-five percent, and
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secondarily, about fifteen percent from the exhaled smoke from the smoker's lungs. Q. smoke? A. Well, there are more than seven thousand What chemical compounds comprise secondhand
chemical compounds in secondhand smoke, in tobacco smoke in general, and of those, probably depending on who does the counting, up to two hundred and fifty of those are classified as toxic chemicals or some of those are carcinogens. Now, I have personally counted about a hundred and seventy-two chemicals. The National Institute for
Environmental Health Sciences has said there are two hundred and fifty, but they didn't publish their list. have. Q. A. smoker. Q. What chemical compounds, if they differ from the What is firsthand smoke? Firsthand smoke is the smoke that goes into the I
secondhand smoke, comprise firsthand smoke? A. Generally, you find the same chemical
constituents in the smoke that goes into the smoker as you do in the smoke that goes into the air, with the difference being that the concentration of smoke that goes into the air, as it's emitted from the cigarette, it's
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much more concentrated and enriched; in other words, per gram of smoke, it's much more concentrated in the sidestream smoke than -- smoke that goes into the air than it is in the mainstream smoke that goes into the smoker; so, it's a more toxic kind of smoke. Q. That doesn't seem to make sense to me. Why
would it be the case that the secondhand smoke is more dangerous than the firsthand? A. We're talking about the potential for harm per We are not
unit of exposure, okay, or per unit of dose.
talking about the actual dose that has been delivered. Now, the smoker obviously gets a very large dose of smoke, both of mainstream smoke and of his own sidestream smoke. Q. A. What is sidestream smoke? Sidestream smoke is what comes off the burning
end of the cigarette. Q. A. So that's different from secondhand smoke? Secondhand smoke is the combination of exhaled
mainstream and sidestream; so, I'm using the terms interchangeably. I say sidestream smoke, that
specifically means what comes from the burning end of the cigarette. If I use the term secondhand smoke, that
includes exhaled mainstream smoke, so the smoker is actually exposed to a good deal of secondhand smoke, and
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it demonstrably increases the risk of lung cancer in smokers. Q. Are their any other differences between
firsthand and secondhand smoke? A. Yes, the smoke that goes into the smoker -- for
example, compounds like nitrogen oxide is in the air around us; is oxidized by the oxygen in the air to nitrogen dioxide, which is a far more toxic compound than is in nitrogen oxide; so, the secondhand smoke as it ages in the air and reacts chemically can produce more toxic compounds. Also, when you puff on a cigarette, it
glows, and so that glow really constitutes a much higher temperature than in between puffs, and all of the sidestream smoke is generated in between puffs and at a much lower combustion temperature, and therefore, when you have a low combustion temperature, you make what they call more products of incomplete combustion, and you make many more toxic chemicals that -- as a result of that lower temperature. That's one of the reasons why secondhand
smoke is more toxic than so-called firsthand smoke that goes into the smoker. Q. before. A. Thirdhand smoke is simply a term of art that was What is thirdhand smoke? I have heard that term
developed in California to describe the deposition of
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tobacco tars and semivolatile organic compounds, volatile organic compounds onto surfaces; so, in other words, after the smoker has quit smoking in a space, a lot of the smoke has been absorbed; physically sticking to or absorbed; going into like a carpet; getting absorbed into the fabric; then afterward, since a lot of these chemicals have high vapor pressures, they will outgas into the air, and that is so-called thirdhand smoke. And it can affect people two ways. One is
children can obviously wipe up the tars, and stick their fingers in their mouth and intake the chemicals, toxic chemicals that way, and also the vapors from the particular volatile compound will come right off, and then contaminate the room air; so, even when people are not smoking in a space, if they have been smoking there on a routine basis, the smoke can still, much lower level, can envelop the space. Q. That be what happened -- what Mr. Schuman's
neighbor testified with regard to the former Popovic house, where there was a tar residue left where a picture had been removed? MR. GOECKE: Objection, Your Honor.
BY MR. SZYMKOWICZ: Q. A. Would that be an example of thirdhand smoke? Yes.
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Q. A.
Can you describe the smell of secondhand smoke? The smell of secondhand smoke is simply the
olfactory perception of chemicals that are in tobacco smoke that will stimulate the trigeminal nerve, the nerve in the nose and face, and its brain's perception of contact with this chemical; so, that is really what you perceive when you breathe tobacco smoke odor or any odor for that matter. You know there's a physical chemical
that enters your nose and stimulates it. After a short -- when you notice it most, when you enter a space as a visitor; you get olfactory fatigue within a few minutes. Most people will not notice the
odor of tobacco smoke after that even though it's present unless the concentration changes, but if you go out and then return to the return space, you'll be a visitor again, and your nose, your olfactory senses will be refreshed, and you'll smell it all over again. Q. Does that exposure to secondhand smoke in humans
create any kind of reaction that the body produces? A. Well, sure, you know, aside from the olfactory
perception, which for many nonsmokers is unpleasant, there is irritation of the senses. You can get eye irritation,
nasal irritation, throat irritation, and in people who suffer from respiratory disease or have cardiovascular problems, it can produce other changes and irritation in
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the lower respiratory system as well. I'll stop right there. Q. The Court has taken judicial notice of several
facts contained in the 2006 and 2010 Surgeon General Reports. THE COURT: I'm going -- I don't know. Let him
testify as to those facts, and I did what -- I'm admitting these as hearsay, but he can certainly testify to that. MR. SZYMKOWICZ: THE COURT: So admitting.
They are hearsay documents, but I'm
admitting them without any other -MR. SZYMKOWICZ: lines one by one? THE COURT: Might want to see which ones they You said 36. Okay. Should we go through
may or may not have questions about. MR. SZYMKOWICZ:
Well, Your Honor, I believe
when judicial notice is taken of facts, that in a civil action, you can't rebut those facts. action, the Defense could. THE COURT: Yeah. So I don't want to have to go In a criminal
MR. SZYMKOWICZ:
through all these facts one by one because I think they are already taken as true. admission being admitted. THE COURT: Well, let me say that -It's like a request for an
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MR. GOECKE:
Yeah, you have seen the passages I have seen them. I don't
that they are referring to. know what they are offhand. THE COURT:
Are there any that you take issue
MR. GOECKE:
In terms of whether my expert may,
I personally couldn't attest to that; so, I think -MR. FISHER: THE COURT: If I may? I will take judicial notice, which
is what the Surgeon General has found. MR. GOECKE: Yeah, that's right. I think the
problem with your order is you have taken judicial notice of certain categories. We don't know what that
specifically applies to. THE COURT: people over there. MR. GOECKE: Right. Understood. Okay. Again, we don't have six
MR. SZYMKOWICZ: MR. FISHER:
So, Your Honor, I'm a little
unclear about where we are. THE COURT: Surgeon General has made these
I'll accept that he has made those findings.
I'll take judicial notice of that. MR. SZYMKOWICZ: Okay.
BY MR. SZYMKOWICZ:
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Q.
Can you tell me who publishes the Surgeon
General Reports? A. Q. United States Public Health Service. Have you ever participated in the publications
of a Surgeon General Report? A. Q. Yes. Are you aware of any Surgeon General Reports
having to do with secondhand smoke? A. Q. A. Yes. And when were they published? The first one, I believe, was in 1971. I think
they had three Surgeon General's Reports in the early -I'm sorry. Yeah, it was one in 1971 that mentioned the
issue of, I know, the voluntary smoking; then in the early 1980s, I believe there were three Surgeon General's Reports that had mainly to do with smoking, but they had chapters on secondhand smoke specifically as -- because secondhand smoke didn't begin to be researched, really, until probably around -- mainly around 1980. Before that,
there were a number of exposures studies, which mainly measured carbon monoxide. You know, that's a very poor Today nobody would measure
marker for secondhand smoke.
carbon monoxide for secondhand smoke. When I started making my measurements, which was in 1976, I concentrated on the particulate phase of
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particles from secondhand smoke. Anyhow, in the early 1980s, I believe there are three reports. One dealt with the issue of secondhand One dealt with respiratory disease,
smoke in lung cancer.
and the third one, I forget; might have dealt with cardiac anomalies, but I'm not positive about that, but the main one, that dealt entirely with involuntary smoke, as the Public Health Service calls it -- They don't call it secondhand smoke. They call it involuntary smoking.
-- that came out in 1976, and I did play a role in making that report possible, and I also was a reviewer of one of the chapters in it. Q. Were there any subsequent Surgeon General
Reports on secondhand smoke? A. Yes. I believe the next one, the next big one
was in 2006. Q. A. Followed? Followed by the one in 2010. There were other
reports put out by various agencies that dealt with the issue, National Academy of Sciences, for example, National Institute for Occupational Safety and Health, EPA, National Institute for Environmental Health Sciences, International Agency for Research on Cancer, The National Cancer Institute, California EPA, World Health Organization, they all produced reports; so, there were
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numerous ones, but, specifically, the Surgeon General, I believe those were the two main reports that dealt with it. They were voluminous, as you can see. report is as voluminous as that too. Q. And these are the gold standard for reporting on '86
this subject area, isn't it? A. Yes. MR. GOECKE: THE WITNESS: standards, yes. Objection, Your Honor. They are one of the gold
There are many.
BY MR. SZYMKOWICZ: Q. Are you aware of any published peer-reviewed
scientific studies that call into question the conclusions of the Surgeon General's Report you just discussed? MR. FISHER: taken Judicial Notice. THE COURT: THE WITNESS: Was he aware of any? I'm not. Objection. Your Honor has already
BY MR. SZYMKOWICZ: Q. Are you aware of any legitimate scientist that
has called into question any of the conclusions found in these Surgeon General's Reports? A. Q. No. How does secondhand smoke travel through the
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air? A. ways. It travels through the air in several different Because it's hot as it relates -- generally much
hotter than the air, the plume will rise up; because the gases and particles are heavier than air, after they cool, they will begin to subside, and this is in a completely still room, okay; however, most rooms; nearly all rooms do not have completely still air. There is always turbulence
in the air caused by temperature differences, air currents, things like that, and so what you wind up with is a lot of micro plumes. tobacco smoke plumes. These are very thin wisps of
You can see a little bit from the
picture here; not a morphous cloud; consists of a lot of little tendrils called micro plumes that will travel through the air. They generally travel quite quickly.
Molecules, themselves, are traveling at a good proportion of the speed of sound because of the Brownian motion. They collide with other molecules, and so they won't travel with the speed of sound from one end of the room to the other, but, you know, within a very short number of minutes, if I lit up a cigarette here, it would go out; reach that door over there; so, it moves very fast, and the important thing is that the concentration in those micro plumes is extremely high. So you can have very
localized whiffs of smoke that can be thousands of
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micrograms per cubic meter; whereas, the average in the room might only be a few hundred, so your perception -- so even though it lasts for a very short time, the reaction of the body can be quite significant in terms of eye, nose and throat irritation. Q. How far does secondhand smoke travel through the
air generally? A. Indoor air, it will -- generally, in a few If it's in a ventilated In outdoor
minutes it will permeate a space.
space, it will do a lot quicker than that.
air, it really depends on the wind velocity, which is the wind direction and wind speed. If you are downwind from a
cigarette or group of cigarettes outdoors, either be in a line source or an area source, and you'll be exposed as long as the wind is blowing toward you. Q. A. What if there is no wind? If there is no wind, again, what happens is the
gases from the smoke will rise up until they become air temperature, and you know, depends on how cool the air is on how long that takes, but generally, a very short period of time; then it will subside, and it will just kind of spread out like a mushroom in all directions unless there's some, you know, building structure which prevents it from migrating in one direction, and then it will just spread out horizontally in all directions; so, basically,
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if there's no wind at all, you can't -- you know that the smoke will go in all directions in which it is possible to go, generally -- not so much up, but generally horizontally, and it will simply migrate that way. Again, if the wind is blowing away from you, generally, you won't get any smoke or you might get a very little amount of smoke, depending on the turbulence in the air. If it's blowing toward you, then you are going to be exposed. Q. Are there differences between how secondhand
smoke travels outside as opposed to an enclosed space? A. Yes, the primary difference is the persistence; If a person stops smoking outdoors, very
for example:
quickly after that person stops smoking, the smoke will be dissipated. It in other words, assuming there's a wind,
it will just blow downwind, and it will be gone depending on what the wind velocity is. Indoors, that's not the case at all. It
generally depends on the air exchange rate of the building, and in a structure, for example, like the Greenbelt Homes, the units in which Mr. Popovic and Mr. Schuman live, you would have typically, maybe, three-quarters of an interchange an hour. buildings built in the 1930's. These are old
They are fairly leaky
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structures, so you might have about three-quarters of an air change an hour. To give you an example, at one air change an hour, it would take about five hours for the smoke of one cigarette to completely dissipate. At half an air change
an hour, it would take about ten hours for that smoke to completely dissipate. What it does, it starts at whatever
level it was when the smoker quit, and then it will decay exponentially until it's basically down at the background. And there are two removal mechanisms. One is
air exchange between the structure, itself, and the external structures, which in this case would mean outdoors or neighboring units or both. And the second way
that the smoke is removed is by absorption on surfaces, and so that's where it becomes thirdhand smoke; so, there's a potential for outgassing after the smoke stops. Q. Can anything be done to mitigate the passage of
the secondhand smoke through an enclosed space? A. it. Q. A. Is that possible? It is certainly possible to do, but the You would have to basically hermetically seal
interventions that have been conducted by building professionals in the Minnesota study specifically looked at this issue; found that through a combination of sealing
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and ventilation, they were able to reduce the concentration -- sorry -- they were able to reduce the air flow between units, adjacent apartment, on average by about 25 percent. In some cases, the sealing actually
increased the flow of air between units. Q. A. Why is that? They don't know. And in other cases, in most of
the cases, it did decrease it but did not eliminate it, and on average, about seventy-five percent of the air that was there going between units before remained going between the units. There are a number of ways this can happen. movement in a building is very complicated. Air
It, first of
all, depends on indoor outdoor temperature differences because they will create horizontal air flow or vertical air flow just in and of themselves. Running of exhaust
fans, kitchen exhaust or bathroom exhaust, can make one amount negative pressure relative to another and create an impetus for moving air from one unit to another. Temperature differences between apartments certainly can do that. And, most importantly, there are penetrations in Buildings are not designed to be air You want your house
the building fabric. tight.
They are designed to breathe.
to be able to have an exchange of air with the outdoors when all the windows and doors are closed. It's done.
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Your windows and doors are not air tight, and the building fabric itself is not air tight. If it were, you know,
with a little bit of insulation, you would never have to heat or cool, and you would quickly exhaust the oxygen in the air. The carbon dioxide concentration would increase. So there is definitely designed --
You would get sick.
building structures are designed to have a minimum air exchange rate. In fact, ASHRAE represents a minimum air
exchange rate of about point three air changes an hour in the new structures that are building today. They
recommend bringing in outdoor ventilation air to keep the air exchange rate up to a certain level because you can make a house, if you are building it new, very very tight. The Minnesota study -- to answer your question, the Minnesota study looked at the issue of whether they could retrofit a building, and these are building professionals, to make it secondhand smoke impermeable, and they basically came to the conclusion -- this is a published peer-reviewed paper -- that they couldn't. couldn't do it. Q. A. Why is that? They simply said there were just too many The holes, They
pathways, plumbing, electrical connections.
the gaps between the wall board and the floor construction is not perfect. They are never really quite even. That's
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why we put molding around base boards.
You don't have a
perfect seal, and in the case of, you know, the Greenbelt Homes, as was described, you got these planks running horizontally from one side of the unit to the next unit, and that provides a conduit for air to travel, and that would be true in the ceiling and in the floor. Q. Is it possible to completely prevent secondhand
smoke from traveling throughout an enclosed space? A. Q. In general, no. Does secondhand smoke cause any risk to the
health of those who breathe in the secondhand smoke? A. Q. A. cancer -MR. FISHER: THE COURT: MR. FISHER: THE COURT: MR. FISHER: Objection, Your Honor. That's all right. Your Honor, if I may be heard? Sure. Mr. Repace, again, is testifying Yes, it does. What risk does it pose? In general, the established risks are lung
about a number of things very educational to the Court; however, with respect to the specifics of this case, relevancy to Mr. Schuman, I'm not sure how his testimony now relates to that. THE COURT: Well, I think he's talking
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generalities right now.
There's a risk of lung cancer by
exposure to secondhand smoke, which I believe is consistent with the Surgeon General's Report as well? THE WITNESS: THE COURT: That is correct. I'll accept that.
BY MR. SZYMKOWICZ: Q. What other risks of secondhand smoke to those
that breathe in secondhand smoke? A. Q. A. Heart disease. Anything else? There's an elevated risk of breast cancer,
although the 2006 Surgeon General's Report did not conclude that it was causal. MR. GOECKE: Your Honor, if I may just object.
Again, this is unfairly prejudicial to my client; not only is it irrelevant; breast cancer not at issue here; if we are going to talk the horribles of secondhand smoke, we could be here for a long time. What we are here to talk
about is what Mr. Schuman's case is. THE COURT: We'll get to that.
Generalities, what the risks. BY MR. SZYMKOWICZ: Q. correct? Q. The risk for male breast cancer at the present Risk of breast cancer both males and females,
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time has not really been examined.
It's very few males
get breast cancer to begin with; so, I'm unaware of any studies in men. They do get breast cancer, but it's rare.
In women, on the other hand, it's very common. California Environmental Protection Agency came to a firm conclusion, as did the Canadian Expert Panel on Breast Cancer, that secondhand smoke was a cause of breast cancer in women. Q. A. What about heart attack? The major cause -- the major problem from
secondhand smoke exposure; much more than lung cancer or breast cancer, is heart disease; includes mortality. And
cardiac abnormalities have been induced in experimental subjects at relatively low levels of particles. People
have found cardiac anomalies, cardiovascular anomalies in exposures as low as fifty micrograms per cubic meter, and levels that high have been observed in smoke infiltration in multifamily dwellings in Minnesota. Q. A. How does secondhand smoke damage the body? Basically, it has a number of toxic chemicals in I have counted a hundred and
it, as testified. seventy-two.
About sixty-nine of those are carcinogens;
goodly number of those are known human carcinogens, and the remainder are carcinogens in animals. It also has
hazard air pollutants in it that are regulated by the
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federal government, thirty-three of those, and a goodly number of chemicals that are regulated by the EPA, hazardous waste; so, there are sixty-nine carcinogens in secondhand spoke, and in active tobacco smoke as well; so, it's a pretty toxic mix of chemicals, and they exist in both the particulate phase as particles in the air that you can see and also in the gas phase. There are many volatile, semivolatile organic compounds, and some of them are extremely irritating, such as the formaldehyde, acetaldehyde, acrolein, A-C-R-O-L-E-I-N. Q. Can you name the chemicals that are regulated by
the federal government that are present in secondhand smoke? A. I have a -- published a list of that. I can't
name them all off the top of my head but -Q. A. Q. A. Why is that? Because there's so many of them. What are the main ones? Main ones, I would say, are the carcinogens, you
know, arsenic, chromium 6, coke oven emissions, which are basically polycyclic aromatic hydrocarbons, and there are hazardous air pollutants like formaldehyde and chromium are regulated, and then what we call criteria air pollutants, simply particles. EPA has a particulate
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matter standard. Q.
Carbon monoxide, nitrogen dioxide.
What objective reactions does the human body
produce when it's exposed to secondhand smoke; for example: When a nonsmoker breathes in a whiff of the
secondhand smoke, what happens to that person's body? MR. GOECKE: are we talking about? MR. SZYMKOWICZ: I don't think it really matters. MR. GOECKE: He's not a medical expert. But he is an expert on how it Objection, Your Honor. What levels
MR. SZYMKOWICZ: affects the body? THE COURT: Strike. Go ahead. THE WITNESS:
Go ahead, subject to Motion to
Well, what has been reported in
the medical literature are headaches, dizziness, nausea, eye, nose and throat irritation, and also migraine headaches, and difficulty in breathing, respiratory problems. BY MR. SZYMKOWICZ: Q. A. Does every human body -I'm not done. Asthma induction and aggravation,
for example. Q. Does every -MR. GOECKE: strike that. Objection, Your Honor. I move to
He's not a medical doctor.
He can't testify
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about what causes injury in people. THE COURT: He's not a doctor. He says the medical literature.
I'll sustain that. Thank you, Your Honor.
MR. GOECKE:
BY MR. SZYMKOWICZ: Q. What subjective reactions are you aware of that
the human body produces in response to exposure to secondhand smoke? MR. GOECKE: objection. Objection, Your Honor. Same
Now we are getting subjective. THE COURT: Subject to Motion to Strike, go
ahead. Let me hear what he has to say. THE WITNESS: you define subjective. Subjective reactions? Depends how
All people report that they --
typically report sensory irritation and difficulty in breathing. MR. GOECKE: Your Honor, I move to strike. Doesn't
People report getting abducted by aliens too. mean it happened. THE COURT: I'll allow.
BY MR. SZYMKOWICZ: Q. studies? A. Yes. These reports were made and published scientific
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Q. Schuman? A. Q. A.
Did there come a time when you met David
Yes. In what context did you meet him? He contacted me. I'm not exactly sure how it
was; probably by telephone, and explained his problem; that he had infiltration of secondhand smoke from a neighbor, and he asked me if I could help him by measuring the secondhand smoke objectively in his unit. Q. A. Q. A. Did you do that? I did. And how did you do that? I did it two ways. I measured the -- I provided
him with a passive nicotine monitor. Q. That was the monitor that he showed during his
testimony yesterday? A. That is correct. And I also came to his house
after he asked me to measure smoke infiltration from outdoors, and I used a carcinogen monitor, which I happen to own to do that. Q. monitor? A. in it Q. What is that machine? What does it do? Yes, I can. Is the box still over there? It is Now I have it here with me.
And can you show for the Court the carcinogen
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A.
It is a device to -- it measures surface bound
polycyclic aromatic hydrocarbons, which is a fancy way of saying it measures the particles in the air that have tobacco smoke or diesel exhaust, like tars on their surfaces, and it's a very sensitive piece of equipment. paid close to $12,000.00 for this. them now for less than fifteen. I think you can't get I
I am happy to have two of
these monitors, and I have deployed them in the field measuring secondhand smoke and outdoor air pollution in Boston, Delaware, Toronto, Maryland, Arizona, for example; also in Milan and in Dublin overseas. Q. Were these the measurements that you just
described; they were undertaken for governments or international organizations? A. In part, yes. Mainly, I did them for research
publications which I have published, and I have also made measurements outdoors with these units. Q. Have you ever before consulted -- have you ever
been hired as a consultant by any government? A. Q. A. Oh, yes. Which government? Australia, New Zealand, Canada, various agencies
in the United States Government, Chile, Portugal, Ireland, England, Norway, the Netherlands, just off the top of my head. Hong Kong
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Q.
Were these consulting jobs undertaken for the
purpose of measuring the secondhand smoke? A. Q. A. In some cases, yes. What were the other cases? In the other cases, mainly to lecture; to
educate decision makers. Q. With regard to this machine that is currently
operating, are you currently performing a test on this? A. Yes. It's reading right now two nanograms per
cubic matter. Q. A. Q. A. Q. A. What is that? Essentially background. What does that mean? Low level. Low level of what? Carcinogens. This particular kind of carcinogen You almost never get
in the air. zero. Q.
There's always some.
The Bailiff is looking scared.
Should we be
afraid right now? A. You know, levels like this are basically, you You can even see levels like this on I have made measurements on
know, fairly common. a cruise ship at sea. cruiseships underway. Q.
You use this monitor for the outdoor study at
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Mr. Schuman's house? A. them. This is the one I used, yes. We used two of
Actually, I had one in his dining room and one in
his living room. Q. We can talk about the results, but that was
undertaken in July of this year, June or July? A. Yes, it was this summer, yeah. The nicotine monitoring was done some time ago. I believe in 2009. Q. How many times have you been to Mr. Schuman's
house in total? A. Q. I'm guessing, probably half-a-dozen times. Did you ever notice the smell of secondhand
smoke while in Mr. Schuman's house? A. noisy. Q. A. On how many occasions? Well, the first time I went into his house, I I smelled it to I did. I'm going to turn this off because it's
smelled secondhand smoke when I entered.
a stronger extent in his downstairs bathroom. Q. That was before Mr. Popovic stopped smoking
inside, right? A. yeah. Q. Did you notice the presence of smell of I believe that's correct. That was in 2009,
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secondhand smoke after that time? A. Q. A. Yes, on other occasions as well. When was that? I couldn't tell you on other occasions indoors,
but out, when I did the outdoor study when I arrived at Mr. Schuman's house, I ran these monitors. going to do a controlled experiment. Actually was
I did not expect
Mr. Popovic to be out there smoking because he hadn't been for a couple of days before that. And so Mr. Schuman asked me to come over, and I said, Well, you know, I'll bring a pack of cigarettes which I have in my refrigerator for studies like this, and I'll just set up outside and do a controlled experiment, and you know, we can see what we measure inside, you know. I'll put it about the same distance he's out there, and we will see what we can pick up. So I ran the background for about 20 minutes, and then Mr. Schuman's dog barked, and he said, usually he barks when Darko comes out to smoke, and so I looked out the window, and sure enough, Mr. Popovic was out there, and I began to smell the secondhand smoke, and you know, I noted it down in the diary that it started at this time, and it ran for about 20 minutes. We continuously smelled secondhand smoke. found it was irritating. I
My eyes, my nose and my throat
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were irritated from the levels. MR. FISHER: Objection, Your Honor. What
Mr. Repace felt is irrelevant to Mr. Schuman's case against the Defendants in this case. MR. SZYMKOWICZ: THE COURT: THE WITNESS: That's part --
I'll allow it. And, you know, I smelled it in his
dining room, in is living room, upstairs bedroom. And then after 20 minutes, Mr. Popovic stopped smoking and started watering his plants, and soon after that, you know, I discontinued the measurement, and I went home, and I downloaded the data into my computer, and I analyzed it, and then I wrote a report for Mr. Schuman on that. Q. And during this time, could you see in realtime
what the numbers were on the machine? A. Q. Yes. Could you see on the machine the numbers going
up or down? A. Yes. They fluctuated up and down as you might
expect because as the micro plumes hit, they would jump up sometimes to ten or more, and when there was no smoking typically see zeros, and 1 and 2; so, they fluctuated. had the realtime plots, which I didn't put in his report because they are a little too complicated for the layman, I
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but I have sent those to colleagues, and they found them fairly interesting. Q. Would you like to put this monitor away so it
doesn't fall? A. Yes, I sure do. MR. FISHER: it. BY MR. SZYMKOWICZ: Q. Going back to the times you performed studies, I would hate to have to replace
you only performed two studies on the Schuman house, an indoor study and outdoor study? A. Q. Yes. And then you updated your indoor study on
several occasions, correct? A. Q. I did. Okay. Going back to the indoor study,
chronologically that was in 2009? A. Q. Yes. At that time, you believed the Popovics were
still smoking inside? A. Q. Yes. And that the monitor was hung on the inside of
Mr. Schuman's house? A. Q. Right. Do you know where inside?
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A. Q.
I believe he hung it in his kitchen. And why in the kitchen? Was that the specific
place that you told him to or is there a reason why? A. location. I didn't tell him to hang it in any specific I left it to his judgment. Generally, I have
had eighteen clients, seventeen, and of these clients, you know, I provided monitors to them; in one, County Health Department made the nicotine measurement. I'm sorry; ask your question again. Q. A. Why was it hung in the kitchen? It was hung in the kitchen. They asked where to hang it. I said, Hang it where you smell the smoke. That's typical. thing. Smoke -- it's really a typical
It really doesn't matter because if you are going
to make a one-month measurement of tobacco smoke over the course of a month is going, on average, out over the whole unit; really doesn't matter. If I told them, you know,
you know, hang it where you don't smell the smoke, they would get upset, so, you know. Q. So if they did hang it where they didn't smell
the smoke, would there still be a reading? A. Q. A. Sure. Why is that? Because the smoke will diffuse throughout the
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whole volume from where it is to where it isn't, and it just doesn't come from one location. You know, they generally hang it in the place where they stay the most and, therefore, they smell it the most, but that doesn't mean it's not coming in from other locations as well. In Mr. Schuman's case, it was obviously coming in all along the wall that he shared with Mr. Popovic because I smelled it in his bathroom as well as his kitchen. In fact, it smelled stronger to me in the
bathroom than it did in the kitchen, but that was the time I was there, you know. Q. I don't live in the house.
There is a reason it was hung for thirty days as
opposed to a week or six months? A. Q. A. Absolutely. Why did you pick 30 days? Typically, if you look at time acitivity
patterns from sociology, people, working people like Mr. Popovic; I'm not sure whether Mrs. Popovic worked outside the home or not, but typically, you know, they will spend five to five-and-a-half hours, employed men. Women, women will spend somewhat more time awake at home, okay. So you are getting, maybe, at most, six hours out
of twenty-four or a quarter of the time they are going to be in their homes and smoking; so, the remainder of the
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time, they are not going to be smoking, and the levels are obviously going to be much lower. So these devices collect air and whatever is in the air, the nicotine in the air, at a rather slow rate; so, you want to be able to collect enough nicotine on the sample that you don't wind up getting a zero number back, when there is really smoke exposure. So the longer you
leave the monitor in place, the lower the limit of detection is. If you left it in place only for a week,
you would have a much higher limited detection than I get. If I leave it in place for a month, I get a very low limited detection, and generally, the levels of nicotine are not terrifically high compared to, you know, if you put them in the smoking area, themselves; so, you want to keep it in place for long enough that you get a reading, if there is a reading, and you don't always get a reading. I have had a couple of clients who got no readings at all. Turned out the smokers went on vacation, you know, or simply lived somewhere else for a time for some other reason. Q. The longer the monitor is exposed, the more
accurate the test results? A. Q. A. That is correct. What is the limited detection of the monitor? It will -- the limited detection in terms of
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mass is .005 micrograms. Q. A. What does that mean in English? Very low number. It's an extremely small amount
of nicotine. Q. How do you know that particular monitor has that
particular limited detection? A. Because I asked the director of the laboratory,
doctor -- Mr. Charles Perrino (phonetic), what the limited detection for his monitors was. Q. And this particular monitor is the, you believe,
industry standard for measuring the presence of nicotine from secondhand smoke? A. Yes, it is. It has been used extensively since
the 1980s in a variety of locations, including multifamily dwellings. Q. What did your measurements of the Schuman home
in 2009 reveal? A. Levels in the Schuman home were .05 micrograms That was about a 35 day average.
per cubic meter. Q.
What does that mean as far as how bad the
problem is? A. Well, it means we detected a presence of
secondhand smoke in the unit, and since I was also there, and I smelled it myself, I had a subjective confirmation of what the objective number was, and if you can smell it,
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typically, you know, you know that there's secondhand smoke in the unit or somebody has smoked there lately. Q. Based on your physical viewing of Mr. Schuman's
home and the smelling of secondhand smoke in Mr. Schuman's home, did you believe that the measurements that your monitor test revealed are accurate? A. Q. I do. Moving to the outdoor study. THE COURT: This may be a good time to break. Can we get through the studies
MR. SZYMKOWICZ: then, maybe another -THE COURT:
How long do you anticipate? Six minutes of questions.
All right.
BY MR. SZYMKOWICZ: Q. With regard to the outdoor study, is the method
that you employed to measure the particulate matter the established method in the scientific community? A. Q. A. Yes. What did your measurement reveal? My measurement revealed that there was a
presence of secondhand smoke from Mr. Popovic's smoking in the yard. Q. Be placed inside Mr. Schuman's house with the
windows open?
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A. A.
Correct? Based on your physical viewing of Mr. Schuman's
home and smelling of secondhand smoke in the time; at the time the outdoor study was performed, do you believe that your measurements are accurate? A. I do. And I also observed, yes, I observed
Mr. Popovic smoking. A. Could you tell me if there is a way for somebody
in Mr. Schuman's shoes to cheat on the monitor test? A. Not a person like Mr. Schuman, no. To fake a
test like this requires a professional.
You have to know
what concentration you would expect if you burned a cigarette in there, and I actually had a client who tried to fake it. Q. A. What happened? How did you catch them?
The level was so large that it appeared that he
lived in a smokey bar 24 hours a day; so, when the reading came back, I simply informed him I could not in good conscious write a report like this. laughed out of town. him again. I would just be Never heard from In
It was ridiculous.
I won't tolerate that kind of behavior.
fact, I warned him in the instructions, Do not attempt to have anyone smoke in your house because it will ruin the test. MR. SZYMKOWICZ: My final area should hopefully
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be a couple of minutes longer. BY MR. SZYMKOWICZ: Q. In Judge Northrop's order of last year, after
the preliminary injunction hearing, I direct your attention; there's a comment about outdoor smoking that I want you to clarify, if you can. and I'll read for it the record. "In his testimony, Mr. Repace gave an approximate distance figure of 25 feet as the distance which secondhand smoke dissipates when exposed to it in an" outdoor "environment so as not to permeate into a dwelling or building. This last note may have added And it's at the very top
significance due to the testimony of at least two or three additional witnesses, all neighbors, who testified on behalf of Mr. Schuman. Two of them testified that they
would smell the smoke from the Defendants through the neighbor's open window. They estimate their window,
however, to be some forty to 60 feet from the Defendant's patio. This is notably inconsistent with the testimony
provided by the Plaintiff's expert," in parenthesis. Mr. Repace, how far was the distance where you did the outdoor smoke measurement inside Mr. Schuman's home from where Mr. Popovic was smoking? A. The most distant location was about 44 feet, and
the carcinogen levels doubled.
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Q.
And do you believe that your testimony was
misinterpreted or misquoted? A. I think it was taken slightly out of context.
My recollection of what I actually said was in this study I did at the University of Maryland in Baltimore Campus, that the levels of secondhand smoke were not detectable under the atmospheric conditions on that particular day beyond 25 feet. And I think I said that on that particular day, it was extremely breezy, and the physics of outdoor atmospheric dispersion or pollutants in a point source like a cigarette is that it's inversely proportional to the wind speed, the concentration downwind; so, if you have a very high wind speed, you are going to have a very low downwind concentration, and the wind speed on that particular day was very high. I would say typically we
had gusts of twenty or thirty miles an hour; so, it was a very, very windy day, and, you know, when there is a very low wind velocity, wind speed, because velocity incorporates direction, when you have a very low wind speed, the concentration downwind will be much higher; so, that really is the issue. How far you are able to measure secondhand smoke outdoors and how much it's going to be detectable by a person is going to depend on the wind, both direction and
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the speed; so, if you have a low speed, you'll find that it can be detected very far out, as Mr. Schuman's other neighbors had reported and as I measured. So I think that the dining room was about eight meters, 8.2 meters from Mr. Popovic's smoking, and which is about 27 feet, I think, and, yeah, the dining room. Living room was 44 feet away from where I had the monitor; so, in both cases, the carcinogen levels were doubled. Q. And do you know the distance between
Mr. Schuman's wall on the garden side, his outdoor wall, to the common area? A. Do you know how far that is?
Yes, it's in one of my reports, and my That's
recollection is that it's a little over 42 feet.
the perpendicular distance from the face of -- from Mr. Schuman's back door or Mr. Popovic's back door to the common area, where you have this oval size walk. Q. And do the measurements that you took of the
behavior of the secondhand smoke outdoors; in general, all the studies you have taken, including the testing at Mr. Schuman's house, led you to clarify for Judge Northrop today your position with regard to how secondhand smoke travels outside? A. Q. Yes. This is -- these are from information that you
have gained in the last year, is that correct?
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A. Q.
In part, yes. And can you state what that position is today so
that we are clear? A. The position that I'm stating today is that the
measured detectable level, based on my carcinogen monitor under the conditions that I made measurements in Mr. Schuman's apartment, were that I was able to detect secondhand smoke at a distance of about 44 feet. Q. And in conclusion, on that smoking test, what What does that reveal to you?
were the readings? A.
It doubled background levels of carcinogens, and
more importantly, the background levels were not associated with any sensory irritation either by me or by Mr. Schuman, according to what he told me, but doubling those levels was associated with sensory irritation and a detectable odor of tobacco smoke, which was frankly offensive. MR. SZYMKOWICZ: good break point. Tomorrow, Mr. Repace, he has got a slide show that describes his findings. Hopefully, that will take Your Honor, I think we are at a
less, on my side, less than an hour. We have Dr. Munzer to testify tomorrow. I was
hoping we could go all day tomorrow, if that's possible. THE COURT: We'll go most of the day. The only
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problem is I have got a couple of other matters; that Friday is usually our miscellaneous docket. I put most of
our miscellaneous aside, but I hope to clear up two or three odds and ends fairly early on; may not get started until 9:45 tomorrow. MR. SZYMKOWICZ: THE COURT: Be here 9:45 tomorrow.
No later than 9:45. Okay. I have copies of the exhibit
MR. SZYMKOWICZ: THE DEPUTY CLERK:
lists if you guys -- updated one. MR. SZYMKOWICZ: MR. GOECKE: Thank you, Your Honor.
Thanks, Your Honor.
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REPORTER'S CERTIFICATE I, Diana L. Wakefield, an Official Court Reporter for the Circuit Court for Prince George's County, Maryland, do hereby certify that I stenographically recorded the proceedings in the matter of David S. Schuman vs. Greenbelt Homes, Inc., et al, Civil Action Law 10-06047, on August 18, 2011, before the Honorable Albert W. Northrop, Associate Judge. I further certify that the page numbers one through 257 constitute the official transcript of the testimony of the witnesses as transcribed by me from my stenographic notes to the within typewritten matter in a complete manner to the best of my knowledge and belief. In Witness Whereof, I have affixed my signature on this the 6th day of September, 2011.
_________________________________ DIANA L. WAKEFIELD, RMR Official Court Reporter
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IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND DAVID S. SCHUMAN, Plaintiff, vs. GREENBELT HOMES, INC., et al, Defendant. _______________________/ CIVIL ACTION LAW 10-06047
REPORTER'S OFFICIAL TRANSCRIPT OF PROCEEDINGS (Trial Before the Court) VOLUME III OF VII Upper Marlboro, Maryland Friday, August 19th, 2011
BEFORE: HONORABLE ALBERT W. NORTHROP, Associate Judge
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Diana L. Wakefield, RMR Official Court Reporter P.O. Box 401 Upper Marlboro, Maryland DARKO POPOVIC, PRO SE For the Defendant GHI: JASON FISHER, ESQUIRE MICHAEL GOECKE, ESQUIRE APPEARANCES: For the Plaintiff: J. P. SZYMKOWICZ, ESQUIRE RITA TURNER, ESQUIRE
20773
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T E M P O R A R Y PLF'S WITNESSES Frank Gervasci Carolyn Hammett Kevin Hammett Dory Ipolito David Schuman David Schuman Gretchen Overdurff James Repace James Repace DEFENSE WITNESSES Alfred Munzer Ronald Gots Sylvia Lewis Tokey Boswell David Schuman Darko Popovic 3-137 4-32 4-150 5-7 5-78 5-110 Direct 1-25 1-91 1-114 1-133 1-203 2-6 2-122 2-185 3-7
I N D E X
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 seated. hand. stand.
P R O C E E D I N G S THE DEPUTY CLERK: Greenbelt Homes. MR. SZYMKOWICZ: Good morning, Your Honor. CAL10-06047, Schuman versus
J. P. Szymkowicz and Rita Turner on behalf of Mr. Schuman. MR. GOECKE: Good morning, Your Honor. Michael
Goecke and Jason Fisher on behalf of Greenbelt Homes, along with Gretchen Overdurff. MS. OVERDURFF: MR. POPOVIC: Popovic, pro se. THE COURT: I believe Mr. Repace is still on the Good morning. Good morning, Your Honor. Darko
THE DEPUTY CLERK: THE COURT:
I need to swear you back in.
Mr. Repace, please raise your right
(Witness resworn.) THE DEPUTY CLERK: Thank you. You may be
State your first and last name and spell them for the record. THE WITNESS: R-E-P-A-C-E. THE DEPUTY CLERK: MR. SZYMKOWICZ: Thank you. Good morning, Mr. Repace. James Repace, J-A-M-E-S,
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
Good morning, Mr. Szymkowicz. MR. SZYMKOWICZ: This is the second day you are
testifying, so hopefully we have under an hour. JAMES REPACE, a witness produced on call of the State, having been previously duly sworn, was resworn and examined and testified as follows: DIRECT EXAMINATION (Continued) BY MR. SZYMKOWICZ: To conclude your testimony, did you review the
Martel report that Mr. Schuman talked about during his examination? A. Q. I have seen it. Can you tell me what the Martel report was
testing for? A. Q. Carbon monoxide. Would that be an established test to determine
the presence of secondhand smoke? A. Not really. Cigarettes are very weak emitters
of carbon monoxide.
If he had made a measurement, for
example, in Mr. Popovic's home with both of the Popovics smoking in equilibrium so we had a steady stage situation, you would have less than a part per million of carbon monoxide in that house, and the outdoor background would be of the order of one to three parts per million just
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from urban air; so, you would never pick it up; so, carbon monoxide actually is an extremely poor indicator for the presence of secondhand smoke, and the only time you actually really find very elevated levels of carbon monoxide from smoking is in places like cigar bars where you can get eight or nine, twelve parts per million of carbon monoxide. Q. If the Popovics were not home and were not
smoking at the time, would there be any reading on the carbon monoxide report? A. Q. monoxide? A. Well, it could decay like any other pollutant, It would be essentially zero. And why is that? What is the life of carbon
so if it starts out at least about point ninety parts per million, and it would simply decay back down to background, below background. Q. A. How long would it take to decay basically? Close window air exchange rate of typical home
is five -- yeah, about five hours it would be down to really zero. Q. With regard to the use of fans, filtering,
sealing and other remedial actions, would that be able to prevent the migration of secondhand smoke from the Popovic unit to the Schuman unit?
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A.
In general, it would reduce but not eliminate
the air infiltration from one unit to the other along with whatever pollutants were in the air. could actually increase. Q. A. In some cases, it
That has been observed.
How would it increase? We don't know why it happens, but it's been
observed in the Minnesota study in thirty-five homes that they tested. I think, two, at least two, after they did It may
the sealing and ventilation, the levels increased. well be due because there was an unfavorable for the
dispersion of pollutants, air flow, before they did the sealing and extra ventilation, and afterward, it increased the flow from the smoker's apartment into the nonsmoker's apartment; so, you actually never know what you are going to get. And the authors of the study, professional
building scientists, concluded that sealing and ventilation were inadequate control measures for reducing infiltration for secondhand smoke, and that if you really wanted to achieve a significant reduction in air infiltration between units, you basically have to evacuate the premises, gut them down to the frame and reconstruct them; so, in other words, you basically total the building. Q. Why can't you reduce rather than totally
eliminate the home?
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A.
Simply because you can't find every crack and
crevice; so many porosities once you have sealed the obvious ones that you can see. holes that you can't see. Q. Did you prepare any slides to help you explain There are many, many small
your findings to the Court today? A. Q. A. I did. Why did you prepare these? Some of these issues are rather complex to
convey in English, and I think a picture is worth a thousand words. Q. A. How many slides are there? I believe there are something of the order of
twenty-five to thirty. Q. A. Q. Okay. Yes. Would you like to start your slides? Sure.
Can you tell me about any previous studies
involving secondhand smoke in multifamily dwellings either performed by you or others? A. this talk. Q. A. Okay. And I have performed some and other people have Yes, I'm going to get to that in the course of
performed some. Basically, the background to the issue is that
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there have been a couple of studies in Minnesota and New York, total of about 5500 people were surveyed, and they found that almost half of them had evidence of -reported evidence of smoke infiltration. There is several
reports that they felt that the smoke had come through, and the majority of those said they were bothered by it, and ten percent said that they had routine daily infiltration of secondhand smoke. Majority of the
residents favored smoke-free multifamily dwellings. My studies, I had eighteen, what I call, victims. They were clients of mine who paid a hundred
dollars for the monitoring and $500.00 for my report; so, these were people who were willing to spend some money to find out; to get some objective measure of secondhand smoke infiltration in their dwellings, and I provided the Hammond nicotine monitor to them for a deployment. Q. the cup? A. That's right, the one I showed yesterday. In all but one of those cases, I made the measurement with the Hammond monitor. The other one, the And the Hammond monitor was the little thing in
Fry County Health Department (phonetic) in Colorado made it. MR. GOECKE: Point of clarification, Your Honor.
I believe the Hammond monitor was the one we saw on the
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first day of trial. the particle --
Yesterday, you had the other device,
THE WITNESS:
Carcinogen monitor, right.
Hammond monitor was the one in the cup, that's correct. MR. GOECKE: THE WITNESS: Thank you. So the one month levels of
nicotine that my clients reported varied between zero point one to zero point three eight micrograms per cubic meter. And to put it in perspective, those levels
corresponded to subjective complaints by these people of respiratory problems and irritation. About half of them
sought medical care, and seventeen percent of them said they were hospitalized because of smoke infiltration. BY MR. SZYMKOWICZ: Q. monitor? A. It simply depends on how long you deploy it. I What is the limited detection of the Hammond
have a slide that will explain that in a little bit. Now, one of the most important things to understand is the concept of risk, which I think is widely misunderstood, and this graph shows the concept of risk very graphically. It's a study by the United Kingdom,
male doctors over a forty year period of time; what we call a prospective epidemiological study. It was done by
Sir Richard Dauph from 1951 to 1991, and it was the
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effects of cigarette smoking on survival.
This is
basically based on a life table in which smokers and nonsmokers are separate. So the way insurance companies figure out how much to charge for insurance is based on a life table. other words, if a hundred percent of at alive of their clients at a certain age, how many would be expected to die as they age, and then they can figure what to charge for insurance policies. This is the same kind of study In
based on a life table, and if you look at the black curve here, what I have here is plotted percent alive at age thirty-five on the bottom axis versus the percent alive at age one hundred. The black curve at top is nonsmokers.
The red curve at the bottom is current smokers, and these would be smokers who smoke twenty-five or more cigarettes a day, which is the typical smoker. than that. Very few smoke less
In any case, you can see, for a hundred
percent of the nonsmokers who were alive at age thirty-five -MR. GOECKE: Excuse me, Mr. Repace. Again, this is not Secondhand smokers.
I would like to object. relevant to our case about smokers.
It's highly prejudical to my client to talk about all the negative effects of smoking. Nobody disputes that
cigarette smoking can cause cancer or decrease a person's
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life expectancy. You have taken judicial notice of these facts already, Your Honor. here. THE COURT: right. I'll allow it a little bit. May be educational. You are I think we are just wasting time
Nobody disputes it. MR. GOECKE:
If it will help the Court, no
question this is about smokers as opposed to secondhand smoke? THE WITNESS: Yes, it is, but it illustrates the
concept of risk, and at the bottom, you can see that eighty percent remain alive at age seventy, and fifty percent of the current smokers of twenty-five or more cigarettes a day are alive; so what -- and at age 85, two-thirds of the nonsmokers have died and ninety-two percent of the smokers have died. What this means is
people who smoke relative to people who don't smoke, and we are talking about the typical smoker here really transfers themselves from this risk pool at the top curve to the risk pool in the bottom curve. Okay.
So what we mean by an increase in risk is that you move from the set of nonsmokers to the set of smokers, and what that does is it causes a loss of life expectancy, and while you can't predict, for any single individual, how he or she is going to fall out on the bottom curve;
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that is, at what age that they will fully die, what you can say for sure is that their risks of mortality has increased, and that's what we mean by an increase in risk. BY MR. SZYMKOWICZ: Q. Is there such a study of people that live with
smokers, like a husband or wife that are nonsmokers or somebody like Mr. Schuman is a nonsmoker; lived next to a smoker? A. Have there been any studies along this line? I don't think there have been any studies of I think there have
people in Mr. Schuman's situation.
been an enormous number of studies of the smoking -sorry -- the nonsmoking spouses of smoking -- generally, smoking men; so, a few studies were of smoking women, but basically what they found is their risk of lung cancer and heart disease was markedly increased relative to those who had nonsmoking spouses. Q. Can you tell me what organs of the body cause
tobacco -- does the tobacco smoke damage? A. Yes, that's what this slide deals with. There
are -- I won't go through -MR. GOECKE: note another objection. in this Court. MR. SZYMKOWICZ: I would disagree, Your Honor. Again, Your Honor, just like to None of these organs are an issue
This is the risk of damaging these organs; what is at
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issue in this case. THE COURT: THE WITNESS: THE COURT: THE WITNESS: This is for firsthand smoke? That is correct. I'll note the objection. You know, just, basically, ten
cancers, four cardiovascular diseases, five respiratory diseases, including eye, gastric and bone disease caused by exposure to tobacco smoke. BY MR. SZYMKOWICZ: Q. A. Primary smoking? This is for primary smoking, but I think the
important point to draw from this is that the Surgeon General has said there is no safe level of exposure either to primary or secondary smoke. In other words, it's a
continuum; so, there are some exposure response curves that goes from smokers to nonsmokers, and what we know for heart disease and for lung cancer, in particular, is that they are nonlinear. In other words, they increase very
steeply at low doses; then they flatten out very high exposures of smokers; so as the point I made before, secondhand smoke, which is the smoke that is exhaled from the smoker and primarily the smoke that comes off the burning end of the cigarette, contains an enormous number of toxic chemicals, carcinogens, hazardous waste, and has dust, air pollutants; a number of chemicals in secondhand
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smoke are known from occupational studies to cause diseases of various organs. That's bladder cancer,
lymphatic cancer, lung cancer and so forth. The 2010 Surgeon General's report concluded, in part, that every year thousands of nonsmokers die from heart disease and lung cancer, and hundreds of thousands of children from respiratory infections because of exposure to secondhand smoke. There is no risk-free level
of exposure to tobacco smoke, and there's no safe Tobacco product. Q. What does that mean, there's no risk-free level
of tobacco smoke? A. In other words in all the studies that have ever
been done, either of active smoking or passive smoking, as exposure to secondhand smoke, no one has ever discovered a safe threshold for exposure. This slide simply illustrates the level of particles that have been measured in one study in San Jose, California for a four-story building where the monitors were placed in several places in the building, parking garage, in the lobby, in the second floor hallway, the third floor hallway, in a nonsmoker's apartment, on the 4th floor, top, and nonsmoker was above two smoker's apartments, and so what this study found, in brief, that they were rather low levels in the parking garage and in
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the -- I'm sorry -- in the lobby where there was no smoking going on. In the hallway outside of the smoker's
apartments, because it leaked out the doorways from the cracks around the doors and under the doors, there were high levels, and in the nonsmoker's apartment, this was late at night when there would be no cooking, there were very high levels of particulate matter, and relative to the outdoor background increased by about 50 micrograms per cubic meter, which is in the zone that people have reported for particulate matter from secondhand smoke causing abnormalities in the heart rate variability. Q. A. Who performed this test? This was my colleague, Neil Klepeis, Dr. Neil
Klepeis, who is a consultant at the Department of Civil and Environmental Engineering at Stanford University, and he is one of the people I'm working with, and we are doing active research on secondhand smoke infiltration in multifamily dwellings. We have a three-year project that
is sponsored by the California Department of Health, the tobacco-related disease program, and we are about halfway through that study at this point. This is the second study done by Dr. King at Roswell Park Cancer Institute in upstate New York near Buffalo, and they did a study where they were actually able, for the very first time that I'm aware of, able to
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simultaneously get into a smoker's unit and nonsmoker's unit which were adjacent and to measure the concentration of secondhand smoke, and that's this. What we have here
is a plot of fine particle concentration on the vertical axis from zero to two hundred twenty-five micrograms per cubic meter; then we have the time, military time from 1847, which would be, I believe -Q. A. 6:47? 6:47 to 7:50 at night, and so you can see the It peaked at two hundred ten There was a leg of two to The level
level when they started.
micrograms per cubic meter.
three minutes in the nonsmoker's apartment.
peaked at fifty micrograms per cubic meter; then, after the smoke, the cigarette had stopped burning, of course, the smoke decayed down, and thereafter, really got lower than about -- you know, if you look at this maybe fifty micrograms per cubic meter by comparison, the outdoor background is down here at about, looks like it's between five and ten micrograms per cubic meter, and in a nonsmoker's apartment, you can see it decays down; remains well above background. The smoker, about a half-hour later, smokes his second cigarette. The peak levels go up over a 100
micrograms per cubic meter in the smoker's apartment, and it looks like to me about 60 micrograms per cubic meter in
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the nonsmoker's apartment; so, the point is you can get substantial elevations in particulate matter from a smoker's apartment adjacent to a nonsmoker's apartment. Q. Why did the second cigarette have a lower peak
than the first one? A. I believe the patio door was open, so the
ventilation conditions were different. Q. A. And you didn't perform the study? No. I am co-chairing with the professor on a
symposium on smoke infiltration in multifamily dwellings. I have invited all these people to lecture; be in Baltimore in October. Now, this is probably the most extensive and most important study that has ever been done of the effect of sealing and ventilation on air flow between structures in multifamily dwellings. This was done in Minnesota,
where it gets extremely cold in the winter; so, the study was done with an eye toward, A, reducing the air infiltration from indoors to outdoors and also reducing the secondhand smoke infiltration from one apartment to another. buildings: And you can see it's been done in a variety of eight plex, four story, twelve plex, hundred And
and thirty-eight unit, and eleven story buildings. they asked themselves the question: If we made an
intervention in the homes, in apartments where people were
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actively living, without evacuating the people, and we do the best job we could at sealing and adding extra ventilation to reduce the pollution in the buildings, how effective could we make this? Now, this is a fairly complicated slide, but I will just explain it in very simple terms. On the
vertical axis, we have the percent of the air infiltrating between units, from one unit to another, and this would be one percent, ten percent of the air and a hundred percent. Now, no apartment had a hundred percent of its air infiltrating from another unit. On average, about five In this
percent of the air infiltrated in between units.
study of thirty-five units, however, about eight percent of the units had between twenty-five percent and seventy percent of their air infiltrating neighboring apartments. That was the study that they did before they made their intervention. Q. Do we know on the Schuman house what the
percentage is? A. We have no idea. That hasn't been measured.
Obviously, it happened because we could smell the smoke coming through. What the percentages, I don't know. I
have made some assumptions on it, which I'll talk about later, but it hasn't been measured. Anyhow, the red circles, the red dots, are the
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values before they did their serious interventions, like caulking, and sealing and ventilation, and the black dots are what happened to the air infiltration after they did it. Now, this is a logarithmic block; so, plot, plot; this is a little bit condensed here, but basically it says, on average, they were able to reduce the air infiltration by about twenty-five percent; however, in a couple of cases, you can see like this one red dot is the presealing and ventilation value, and this is the post sealing, the black dot. You see it actually went up, and
there is one in here also where it went up; so, in a couple of cases, we actually had an increase in air infiltration; so, you can see that a considerable amount of air can move between units. Now, why some units are tighter than others has to do a lot with the construction and has a lot to do with the kind of air flows you get. Now, I want to change gears here, and what is the irritating effect of secondhand smoke because we know particles will infiltrate as part of secondhand smoke from one unit to the other, and there was an important study done by Martin Junker in Switzerland of twenty-four subjects ranking in age from eighteen to thirty-four years, and these were healthy young people. They were
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screened for any allergies or to particulate; particularly allergies to secondhand smoke. They were all nonsmokers.
What they did, put them in an exposure chamber, and they exposed them to a combination of secondhand smoke and outdoor air, clean outdoor air, and so they started at a very low concentration of -- well, they started with clean air to get a baseline, and then they started with a very low concentration of secondhand smoke, and they asked people to rate their eye irritation and their odor, you know, unpleasant odors, and they also did an eye blink study, and what they found -- and they did this. They
exposed them to different levels randomly, so that the people who were getting exposed didn't know what concentration of smoke was in the air. They just were
sometimes exposed to clean air and sometimes randomly exposed to a high level or low level of secondhand smoke. And so when they completed the study, they found that the unpleasant odor threshold was about one microgram per cubic meter of secondhand smoke particles, and between four and five micrograms per cubic meter for eye, nose and throat irritation. That was the median value, which means
that half the people had reactions below it, but half didn't have reactions until they exceeded that threshold. Another study, by Annetta Weber in Switzerland, also published the IARC Monograph on passive smoking using
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thirty-three to 43 subjects.
What they basically found
that was that exposure to secondhand smoke, eye, nose and throat irritation, eye-blink rate, which is an objective measure, increased with increasing secondhand smoke concentration; also increasing smoke, increasing duration of exposure. What they found also is that the people that
had hay fever reported significantly more irritation than those who didn't. Now, this is the study that I did in supplying these passive nicotine monitors to -- Hammond monitors to eighteen clients basically ranging from Massachusetts to California, including New York State, New Jersey, Maryland, Virginia, Colorado and California. And the two
of these at the top here were commercial places, and I won't deal with those, but all the rest of these were multifamily dwellings, as you can see what they look like. Some of them are high-rise apartments; some of them old; some of them are new, and some of them are garden apartments. And what they all have in common is that
these people had significant problems with secondhand smoke infiltration, and they came to me to provide some measurements, and to write a report for them, so they could use it to try to mitigate the situation by either dealing with the smokers or dealing with the landlord or, in some cases, getting involved in litigation.
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We do know from the studies of secondhand smoke exposure that have been done in nonsmokers, that there are acute effects and chronic effects; that it can induce and aggravate asthma. These are all in the Surgeon General's
Reports; can cause eye, nose, throat irritation, headaches, dizziness, nausea, allergic sensitization, wheezing, cardiovascular abnormalities. And chronic
exposure can cause respiratory symptoms, lung, and nasal, sinus cancer, breast cancer in younger women, cardiovascular mortality and an elevated risk of stroke. These have all been recorded, and the references are there. Now, that brings us back to my subjects, my eighteen subjects. subjectively report? What kind of symptoms did they Now, this was simply just like
Mr. Schuman; I asked him to provide a report of what he felt his subjective symptoms were when he was exposed to or perceived that he was exposed to secondhand smoke; so, his data point is in here as well. subjects had the same reaction. Not all Plaintiffs, or
Some of them had
coughing; others had wheezing; others complained of bad odors and nuisance, fatigue, weakness, dizziness, difficulty breathing, throat irritation, lung and eye irritation, bronchitis, upper and lower respiratory effects, congestion, nasal irritation, nausea, vomiting,
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headache, heart problems, choking and allergy to secondhand smoke. About half of them -- exactly half of
them consulted physicians, and three persons were hospitalized. Now, we get to the issue that you asked about before, which was, you know, what's the limit of detection for the Hammond monitor. And for the Schuman case, where
he deployed his monitor for thirty-five, roughly thirty-five point two days, the the level of detection in air, which is point zero zero three micrograms per cubic meter, which is about not quite fifteen times the limit of detection. I did not have the field blank because I I certainly had smelled the
didn't think I needed it.
smoke myself, and I knew that it was certainly there, but I did ask Mr. Charles Perrino, who runs the lab, Hammond Lab, typically, what are the levels in the field blanks that you get back? And he said most of them are zero, and he says we never had a field blank that came in higher than point zero zero five. Q. A. What is a field blank? Field blank is simply a monitor that is kept in
the cup and not exposed directly to secondhand smoke. Generally, they are shipped from the lab to the experimenter, and they are kept sometimes on-site where
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the experiments are going on, and then they ship them back again to see if they picked up any nicotine on the way. Generally, these cups are really quite well sealed, and they are quite well protected from secondhand smoke. And
they have a very clean lab in Berkley, and so, generally, there's very little residual nicotine from any other source that gets on these filters; so, the levels are quite low. Now, why do we measure nicotine? We measure We don't
nicotine because it is unique to tobacco smoke.
measure particles in general unless we can be in the smoker's apartment and in the nonsmoker's apartment at the same time and have some idea of what smoking is going on because there are other sources of particles, but we can use the nicotine levels to calculate the particle levels. In the original report that I did, I simply assumed that there was a ten to one ratio between particles from secondhand smoke and nicotine from secondhand smoke because that's what had been reported and measured in places where people were smoking, but when it penetrated through the walls, no one had ever measured it at the time that I did the original study for Mr. Schuman; so, I simply assumed it was a ten to one, but since then, I found that in the Minnesota study, they reported levels as high as two hundred fifty to one and in a controlled study
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in a smoking lounge they did in California by the California Department of Health, they reported a ratio of a hundred to one. And so you can see that in the
nonsmoker's apartment, because nicotine is much stickier than the particles are, it gets absorbed much more preferentially as it goes through the walls, and so while it is an indicator of the presence of secondhand smoke, the ratio between particles to nicotine changes as the smoke infiltrates through the walls, and so what I did was simply to convert the Schuman nicotine level to particles from secondhand smoke, and I used conservatively a hundred to one ratio in my revised report, and that's equivalent to roughly twenty micrograms per cubic meter, which is if you assume a six hour a day exposure, during exposure, it would be about four to five times the Junker level. I
made the assumption what would the level of -- I did a calculation, what would the level of secondhand smoke be in Mr. Popovic's unit if he and his wife were both smoking, and I calculated that it would be about two hundred and twenty-three micrograms per cubic meter; not very different from a study that we saw in upstate New York, that the equivalent nicotine level during smoking would be about twenty-two micrograms per cubic meter, and I simply made an assumption just to see what kind of infiltration we might -- that might explain the level that
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we found in Mr. Schuman's unit.
I said if ten percent of
the particles enter the Schuman unit, and if one percent of the nicotine enters, which is a hundred to one ratio, then you would expect to see, if smoking occurred for six hours a day, a level of about .05 or .06 compared to the point 05 that I actually measured, and so it's reasonable if you have roughly maybe a ten percent infiltration, which is comparable to what people have measured. This
doesn't mean that that's actually what it was, but you know, it sort of supports the value that we got. The next question was -- and this is a plot of one month average nicotine for all of my clients versus the cumulative frequency. This is sort of probability of
finding a given level, and the average probability, the fifty percent probability was -- I'm sorry. here. It's about
This was the median level, and it was a little bit Mr. Schuman's level was at point
above point zero one.
05; was about the 75th percentile; so, among the eighteen clients that I had or seventeen clients, discounting the cigar-bar infiltration, he was about 75th percentile; so, I won't go into detail on this slide other than to say that how did the levels that I measured in my complaint buildings -- median levels were about point zero three micrograms per cubic meter for nicotine. In the
Massachusetts and Minnesota studies, where I didn't
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mention the Massachusetts study, but that was done by Harvard in Boston; if you look at the full range of median values, it ranged from about point one to point zero six, and so my level at point O three is certainly in the middle of that range; so, the levels were actually not that unusual for what people have measured. But my buildings were complaint buildings, so one has to ask, Are Mr. Schuman's complaints justified? In other words, are they reasonable? of things that people report? Are these the kind
Complaint buildings, he's He's
reported bronchitis, acute sensory irritation. consulted a physician. complaint buildings.
That's not unusual for people in He believes that their secondhand Most of my clients feel the
smoke injured his health. same way.
He feels that the conditions are intolerable. He has
Most of my clients felt exactly the same way. tried sealing.
Most of my clients tried sealing, and he
complained that the smoke entry was worse in winter, which is reasonable because the houses were all closed up at that point. So what percentage of multifamily dwelling residents complain of secondhand smoke infiltration? other words, how common is this? In
I mentioned this at the
beginning of my talk, but this is a little bit more detail. The study in Minnesota at Hewett all randomly
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surveyed four hundred five Minnesota tenants, and forty-eight percent said smoke infiltrated their units, ten percent said frequently, and thirty-seven percent said it bothered them a lot. Fifty-four percent favored a
smoke-free building policy. In the New York State study, which was almost six thousand New York State multifamily dwelling residents, forty-six pecent said secondhand smoke infiltrated their units, nine percent on a daily basis; very comparable to Minnesota's case. Thirty-five percent
said it bothered them; very comparable again to the Minnesota. Fifty-seven percent favored a smoke-free Nationally, to put the problem in
building policy.
perspective, about forty million multifamily dwellings, one would expect that eighty percent of the residents are nonsmokers based on Census data. If fifty percent of the
nonsmokers' apartments have smoke infiltration and thirty-five percent find it a nuisance, you would expect to see between five and six million apartments with significant smoke infiltration problems. Point? Mr. Schuman's problem isn't unique.
I calculated -- now we are getting specifically down to my findings in the Schuman case. I estimated his risk. In other words, he has
gone from a risk pool where he's not been exposed to
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secondhand smoke to a risk pool where he's exposed to secondhand smoke in his unit, and I asked myself, how high is that above what we call the de minimis risk? When we
regulate hazardous air pollutants in the Environmental Protection Agency, it was about two thousand times de minimis risk levels; so, it's a significant risk. It was
seven times what we call de manifestis risk, which is the risk above which the federal government invariably regulates hazardous air pollutants below the de manifestis risk level; sometimes regulates and sometimes doesn't. Q. Can we stop? Can we go back to that slide for
one minute? A. Q. Yes, we can. This is for the indoor air coming from the
indoor smoke to the indoor area of Mr. Schuman's apartment, correct? A. Q. A. Q. A. Q. A. Q. A. That's correct. Do you have such a slide for the outdoor? Did I do a risk assessment -Yes. -- for his outdoor? Yes? No, I didn't. Okay. Why not?
Why didn't I do that risk assessment for the
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outdoor?
Because I'm not sure how frequently that would
occur, and I didn't -- I simply didn't address that issue in my report. it. And, really, finally, what I want to conclude here in my discussion is the risk assessment model that I used is something that is widely accepted around the world, and all of the papers that I have listed here in the American Review of Respiratory Disease, Canadian Medical Association Journal, New Zealand Medical Journal, U.S. Department of Transportation Risk Assessment of Passive Smoking on Airliners, National Cancer Institute Monograph, which recorded an EPA study which reviewed my study, Harvard Study of Atmospheric Environment. Professor Samet, who was the editor of the 2006 Surgeon General's Report, praised my risk assessment model in his book in the chapter on Environmental Intoxicants. In I didn't think it was necessary to address
Scandinavia -- my model is widely used in Norway, and Sweden, and Finland -- sorry -- to do risk assessment. Seigel and Skier (phonetic) said my model is the best one that they have seen for assessing lung cancer risks. Perninni, et al., in Italy, published in the Journal of the Occupational and Environmental Medicine, used my model. Professor Headly in Hong Kong used my model in
Toxicological Sciences to assess risk of catering workers,
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and Kolb, et al. in Germany said my model was very useful for assessing worker's compensation claims of individual hospitality workers who said that their disease had been caused by exposure to secondhand smoke, and they reviewed the world's literature and concluded that my model was the best. Q. Are you aware of any governments, whether state,
local or foreign government, that have changed their laws based on your models? A. Yes. I think my models are widely used in
Norway and in Finland by the Occupational Health Authorities. Q. Do you know if any of the smoking bans in bars
or restaurants, if the people undertaking these bans, the state, local, federal governments of any country, have used your models in discussions of these issues? A. Q. A. Yes. Which ones? Certainly, there was wide spread discussion in
the United States, and Ireland; in particular, New Zealand and so forth. Q. A. Q. A. Have you ever testified before Congress? Yes, four times. On this issue on secondhand smoke? Yes, on all four occasions, three times before
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the House of Representives and once before the United States Senate. Q. A. Those were all by invitation.
What were the subject areas of that? They were secondhand smoke. I was specifically
requested by members of Congress to come and testify; although, I was not an EPA -- I wasn't an official appointed by the President, and those are the people who usually get to testify, but they simply wanted my expertise; so, I was invited. Q. What about airplanes and casinos? Did you do
any work studying the measurement of secondhand smoke in airplanes and casinos? A. Yes, I have done risk assessment for aircraft
exposures, assessment for aircraft of secondhand smoke levels on aircraft, and as far as casinos, I have done fairly extensive work on measuring secondhand smoke in casinos. I have measured casino smoking in Delaware, in Nevada and in Pennsylvania. I think eight, five,
thirteen, about fourteen casinos that I personally measured, and I have written a paper which I presented; which has been published, in environmental research, and I also gave the paper at the International Conference of Indoor Air Quality in Austin this summer on the levels in ninety-four casinos. So we come to the conclusions on the indoor
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study for Mr. Schuman.
And I discussed that I deployed
the monitor in his apartment, his home, for a month, and I use -- evaluated the nicotine level; used published dose response relationship for chronic mortality for secondhand smoke, lung cancer and heart disease. I estimated that
his risk was in the unacceptable range by federal decision rules, and that's at one level. And the other level, I estimated how his reported irritation from secondhand smoke compared to the median thresholds that were measured in the Junker study, and I estimated they were about five times higher than the median threshold. I pointed out that in my report that
there was no safe level of secondhand smoke exposure. That's widely accepted. And that even brief exposure can
increase the risk of heart attack or lung cancer. And the California EPA pointed out that secondhand smoke can produce chronic respiratory symptoms in adults. I mentioned that a good deal of my clients
actually report that, and I conclude for the case, the indoor case of Mr. Schuman's exposure, that with a reasonable degree of scientific certainty, he's exposed to unhealthy levels of secondhand smoke. MR. GOECKE: Objection, Your Honor. He's not
qualified as a medical expert.
He can't testify about
what is unhealthy or healthy to Mr. Schuman specifically.
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THE COURT: THE WITNESS:
Sustained. He's exposed to levels of
secondhand smoke which constitute a significant risk from cigarette smoking in his neighboring townhouse, and that poses acute and chronic, hazardous, eyes irritating, and malodorous. Seven hundred ninety-seven of my papers were cited almost eight hundred times by research publications of other authors and nineteen times in the 2006 Surgeon General's Report. Now I want to switch gears and finish with the study that did I for Mr. Schuman in his -- concerning outdoor secondhand smoke, and I only have a couple of slides on this. The unit -- what I'm showing here is Mr. Popovic's unit, which is Unit R on the left, and Unit Q on the right, which is Mr. Schuman's unit, and it had been Mr. Popovic's habit to smoke on his patio here in close proximity, in closer proximity to Mr. Schuman's unit (indicating). Recently, he has moved his chair. Objection, Your Honor. This is
MR. GOECKE:
How does he know this? MR. SZYMKOWICZ: THE COURT: THE WITNESS:
There is no foundation.
He saw it.
Did you observe it? I observed it.
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MR. GOECKE: ends of the porch? THE WITNESS:
You observed him sitting on both
I didn't observe him sitting here.
Mr. Schuman had reported this to me, but -MR. GOECKE: Exactly. That's hearsay, Your
THE COURT:
You can talk about the smoker's
chair if that's what you observed. THE WITNESS: I observed him sitting here in the
smoker's chair when I was measuring secondhand smoke carcinogens in Mr. Schuman's unit. I had come there for
the specific purpose of doing a controlled experiment, and after I had made background measurements for twenty minutes, Mr. Popovic came out. Mr. Schuman's dog barked,
and he announced that Mr. Popovic had come out, and I looked out the window, and I observed Mr. Popovic sitting in his chair and smoking; so, I jotted it down in my diary, and we made measurements for another twenty minutes, during which I smelled tobacco smoke in Mr. Schuman's dining room, in his living room and in his upstairs bedroom, and I found the levels to be irritating to the senses and eyes, nose and throat. And I smelled
tobacco smoke, so it definitely came in, and it definitely penetrated into his living room, which is on the opposite side of the house. When I had originally modelled this, I
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did a theoretical calculation and made some predictions as to what levels would be like, and Mr. Schuman was not quite satisfied with that. He wanted some objective
measurement of secondhand smoke, and so we had a fortuitous experiment where -- natural experiment where Mr. Popovic just simply turned up and smoked, so we were able to actually measure it, and the model that I -- the model that is in my report simply bounded the expected concentrations as this blue curve up here. This is
concentration of the fine particles here, carcinogens here versus cigarette window distance. And let me back up one slide. The distance here
from the smoker's chair to Mr. Schuman's window is twenty-seven feet or eight point two meters, and that's his kitchen, dining room window, and his living room window is forty-four feet, and so, basically, what the data showed is that the levels that I measured were within the expected range that I had modelled, which was gratifying, and that the levels of carcinogens in Mr. Schuman's living room and dining room -- and these were simultaneously measured by two of the carcinogen measurers that I had -- doubled in both cases; so, we were able to detect a doubling of the background carcinogen level at 44 feet from the smoker, which was a considerable distance, and I can report that the background levels in
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the living room and the dining room were not associated with any irritation, but when they doubled as a result of the increase from secondhand smoke, they were irritating. And so the conclusions to the outdoor study, basically, I measured the particulate polycyclic aromatic hydrocarbons in Mr. Schuman's living room and dining room from about 6:30 to 8:00 o'clock on Saturday, July 16th, 2011, and in the presence and absence of observed cigarette smoking by Mr. Popovic, and I was -- I smelled and I was irritated by the cigarette smoke odor; so, definitely came in. smoke penetrating. I can confirm the presence of outdoor And during the 20 minute smoking
period, median carcinogenic polycyclic aromatic hydrocarbons doubled over the 20 minute nonsmoking period; I concluded, to a reasonable degree of scientific certainty, that outdoor smoking by Mr. Popovic penetrated through the open windows of Mr. Schuman's home, and so I conclude, within a reasonable degree of scientific certainty, that the smoke infiltrating into Mr. Schuman's unit is both irritating and carcinogenic. MR. GOECKE: Your Honor, I object. He's not
qualified to testify about what is harmful to Mr. Schuman. THE COURT: I'll sustain that. I accept the
conclusions as stated there. MR. GOECKE: But the conclusion to No. 6,
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conclusion it's carcinogenic to No. 6. THE COURT: that. MR. GOECKE: it's carcinogenic. Your Honor, the meter did not show Meter showed that, and I accept
The meter showed a level -He's not a
Mr. Repace, one, concludes it's carcinogenic. doctor.
He's not qualified to talk about what causes
cancers at what level. THE COURT: detected carcinogens. Carcinogens cause cancer. I'll accept it. He
BY MR. SZYMKOWICZ: Q. Mr. Repace, can you go back to the slide that
shows the picture of the house? A. Q. Yes. Mr. Popovic, during his questioning of
Mr. Schuman, pointed out outside that the winds blow from Mr. Popovic's unit to Mr. Schuman's unit twenty-eight percent of the time. A. Q. A. How did you determine that?
I use a wind rose. What does that mean? Well, a wind rose is typically used by airports
to advise pilots on what frequency of wind they can get from a given direction and how fast the wind speed is, because the pilots always want to pick a runway where they are landing into the wind, and so it helps them land, and
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they don't want to land crossways to the wind because it can cause a problem. Turbulence hits you from the side of
the plane, so they maintain extensive records at airports such as BWI, and Reagan National and Dulles, and that's where you can get the information on the typical wind velocities, and I used that Baltimore Washington International Airport wind rose to estimate what percent of the time that the winds blow from Unit R toward Unit Q. Q. would be? A. What I did was I actually physically, on my You did that by figuring out where on a map this
computer, overlaid the wind rose right onto a Google earth view of 11 Ridge Road Court, and looked at the orientation of the housing relative to north, and looked at what the wind frequency and direction were, and what the wind velocity was. value of wind. From my model, I simply picked a typical If there were no wind blowing at all, you
would still get smoke infiltration into Mr. Schuman's unit, and he has reported that he has smelled it under those circumstances. Wind rose is typically used for outdoor atmospheric dispersion modeling. Everybody who does If there isn't one,
dispersion models uses a wind rose.
in major studies, they will go out and select data over the course of a year or more.
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Q.
What was the wind at the time you did the study
at the Schuman house? A. Q. A. I didn't measure it. Do you know if the wind was blowing at all? It wasn't blowing hard. I can tell you that.
You know, this was about -- typically, the winds at night are lower than the winds in the daytime, and this was about 7:30 at night, and so, you know, it was a more -- it was a sort of dusk situation where the wind is generated by what we call technically insolation. That is the
amount of incoming solar radiation in the late afternoon or early evening when you don't have much incoming solar radiation anymore. stable. The atmosphere tends to get more
The wind begins to drop, and you tend to get
actually higher levels of smoke concentration downwind from, you know, chimneys and cigarettes, whatever. I think the implication that Mr. Popovic was trying to show is that twenty-eight percent of the time, the smoke may blow into Mr. Schuman's apartment, but the other percentage of the time, it wouldn't. Is that
something that you would expect to find, that seventy-two percent of the time it wouldn't? A. Seventy-two percent of the time if the wind is
blowing in a different direction, then his neighbor on the other side would get it.
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Q. A.
What if -Or if it were blowing, let's say, from the west
then, and assuming Mr. Popovic is in the same chair and not smoking on the other side of the house, then it would tend to blow it away from the house. Q. But what if there's no wind? Would Mr. Schuman
still get smoke inside? A. If there's no wind, then he would definitely be
exposed, yes, because it would simply -- it would flow out like a mushroom except it can't obviously go into the house because the wall is there, and so it simply has this hundred and eighty degree area in which it can diffuse. Q. And what if the wind were slightly blowing
toward the Ipolito unit, would Mr. Schuman still get any secondhand smoke odor? A. He would get very little, I think, if it were I think, as I said, if there's They would both get it. Both
blowing in that direction. no wind, he would get it. neighbors would get it. Q.
Do you know if there's any study that you are
aware of to see how often the smoke either -- I'm sorry -the wind is either not blowing or blowing toward the Ipolito house? A. Q. Did I do any study other than the wind rose? Yes?
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A. Q.
No. Did the wind rose determine that -- a percentage
of how often it blows toward Dory Ipolito's house? A. Oh, yes. I could do that. I didn't do that
calculation because it wasn't an issue in this case or, at least, not at the time that I did it in the report, but it would. Q. A. Q. A. Q. No. 4. A. Would it blow in that direction? Yes, it would. Did you prepare any reports of your findings? I did. I'm showing you what has been marked as Exhibit Have you ever seen Exhibit 4 before? Yes, it appears to be the first report I did for
Mr. Schuman, June 2009. MR. SZYMKOWICZ: into evidence. MR. GOECKE: Your Honor, we would object to the It Your Honor, I move Exhibit 4
admission of this exhibit for several reasons.
contains a lot of hearsay conversations that Mr. Repace had with Mr. Schuman or with Mr. Perrino or with other people. It also contains a lot of descriptions about He talks a lot about legal It's more of
areas he is not qualified in.
cases affecting secondhand smoke situations. a sociological paper in that regard.
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To the extent that there are relevant portions of this report that pertain to this case, I believe he has already testified about them, and I have no objection to him testifying about other relevant portions. In terms of allowing the entire exhibit in, I think that's inappropriate. THE COURT: Anything in there -- I haven't Is there anything in there of a
looked at it obviously. medical nature? MR. GOECKE:
It's, yes, absolutely.
It's, you
know, similar to some of the things he has testified about, but there are medical comments in here as well. MR. SZYMKOWICZ: Your Honor, I believe these
were the same exhibits, with the exception of the final two, the one, the report from the December and the one from that outdoor study, that were introduced last year at the hearing. THE COURT: Okay. I'll note the objection.
I'll admit it subject to dedacting any irrelevancies about legalities; that's my decision, and any medical references beyond his scope of expertise. (Plaintiff's Exhibit No. 4, previously marked for identification, was admitted into evidence.) MR. GOECKE: THE COURT: And legal issues, Your Honor. I mentioned that.
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BY MR. SZYMKOWICZ: To the extent you haven't discussed these, what
were your conclusions in the June 2009 report? A. My original estimate of the increase in risk of
Mr. Schuman was slightly less than half of what I estimated when I did the updated report with the better particle to nicotine ratio, but otherwise, the conclusions were, more or less, the same. Q. A. Q. A. And did you update your report? I did. When did you update your report? I updated the June 26, 2009 report on August
24th, 2010, about a year later after I had discovered these papers that reported the nicotine to particle ratio in multifamily dwellings. Q. A. Q. 2010? A. Yes, it is. MR. SZYMKOWICZ: Your Honor, I move the Is Exhibit No. 5 that updated report? I'm sorry? Is Exhibit 5 the updated report from August
admission of the August report as Exhibit 5. MR. GOECKE: objections. THE COURT: I'll note the objection. I'll admit Just for the record, same
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it subject to the same dedactions that I mentioned before, if I find those. (Plaintiff's Exhibit No. 5, previously marked for identification, was admitted into evidence.) MR. SZYMKOWICZ: August 2010. THE DEPUTY CLERK: MR. SZYMKOWICZ: THE DEPUTY CLERK: sure. Okay. Okay. Great. Okay. May I approach? Yeah. I just want to make Madam Clerk, No. 5 is the
Thank you. You can keep this for now. I think I have one.
MR. SZYMKOWICZ: THE DEPUTY CLERK:
BY MR. SZYMKOWICZ: Q. A. And why did you use a different ratio? At the time that I did Mr. Schuman's report, I
was unaware that anyone had actually ever measured that ratio in a multifamily dwelling, and when I discovered the Bohac Hewett report from Minnesota, I realized that they had made measurements of that ratio, and then they later published a paper on that subject. And, also, I
discovered the Waggoner study in California, which had reported a hundred to one ratio, and also in our studies at Stanford University Department of Civil and Environmental Engineering, to which I'm a consultant, we also found in our controlled experiments that in places
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where people had never smoked, we did our experiments in a, basically, a modified house trailer; we discovered that the particle to nicotine ratio was as high as five hundred to one, and so this made me realize that the physics -what the physics were in situations like this, and so we decided -- I decided, at that point, I better update this report because I had underestimated the particulate levels in Mr. Schuman's unit, and in all reports I did previously to Mr. Schuman's. Q. What was your conclusions to the extent that you
have not already testified in the August report? A. I think the main conclusions were that, you
know, the levels of irritation were higher in the updated report, and the level of risk was higher, and I already testified to what those were. Q. No. 6. A. Q. A. I'm showing you what has been marked as Exhibit Have you ever seen that report? I have. What is it? That was the report that I did on December 10th,
2010 for Mr. Schuman where I modelled the outdoor smoke case, in other words, smoke infiltration; that the concentration that he would expect at his window from -at different distances from Mr. Popovic's smoking outdoors, and that's where I go through the whole wind
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rose issue; so how I did the calculations and using the atmospheric dispersion model to calculate the level of exposure that one would expect, and I used something called the Gaussian plume model, which is the standard outdoor model, which was developed by a physicist in 1930 -Q. A. Spell it. G-A-U-S-S-I-A-N plume model. So I did, basically, a theoretical calculation for worst case, which would be nighttime stability when you have very stable air and low wind speeds, which would lead to much higher concentrations downwind, and in the daytime when you get a lot of strong sun coming in and less stable air, and that would lead to lower downwind concentrations, and I picked a typical wind speed that you would pick for wind from the Baltimore wind rose that probably overestimates the wind speed in this particular case because it's a relatively sheltered location, but -so the calculations were conservative. But, at that
point, I had no actual measurements to confirm the calculations. I was fairly certain that they were
accurate because my model I had compared to actual outdoor measurement models published by Ott and Klepeis in California, and I did a subsequent measurement that Mr. Schuman requested, and that confirmed that the model
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was accurate. MR. SZYMKOWICZ: Your Honor, I move Exhibit No.
6 into evidence, which is the December 2010 report. MR. GOECKE: Your Honor, in addition to the
objection I made before, I would also like to add that Mr. Repace is not a meteorologist; been no voir dire about his expertise to wind roses; his ability to superimpose what happens at BWI and Greenbelt. THE COURT: They have two runways at BWI, the
directions of College Park, which is very close to this. I'll note that. I'll admit that subject to the same
dedactions, if any. MR. GOECKE: Thank you.
(Plaintiff's Exhibit No. 6, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: Q. A. Q. A. Finally, Exhibit No. 7, have you ever seen that? I have. What is it? That's a July 18th, 2011 report which I prepared
for Mr. Schuman, which reported my experiments with the carcinogen monitor in his living room and dining room. Q. And to the extent your July 2010 (sic) report,
which is Exhibit No. 7, you have now testified your conclusions. Are there any additional findings in that?
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A.
You know, basically with the Two Thousand -- I'm
sorry -- 2011 paper, I showed the photographs that I took and reported the statistics of the measurements that I actually made, and showed how I did the calculation of the relative increase, and I have already reported what my conclusions were in the outdoor case, and when I made the measurement. MR. SZYMKOWICZ: No. 7 into evidence. MR. GOECKE: Honor. THE COURT: It will be admitted. No objection to this one, Your Your Honor, I move Exhibit
(Plaintiff's Exhibit No. 7, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: Your Honor, at this time, we
have had some exhibits that were -- that Your Honor reserved on, Exhibits 33, 34, 37. admitted now. Thirty-three was Mr. Schuman's letter to GHI dated July 20, 2009. Exhibit 34 was Mr. Schuman's letter We ask that they be
to GHI dated August 24th, 2009, and Exhibit 37 was Mr. Schuman's letter to Suzette Agans, GHI President, dated October 17th, 2009. MR. FISHER: each? Your Honor, if I may be heard on
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Your Honor, starting with, I think, the objections are pretty much the same problem. them one by one. With respect to 33, I again, Your Honor, would Mr. Schuman's quotation of discussions Mr. Repace Mr. Repace has testified to Let me take
told him is still hearsay.
what his conclusions are, but what he told Mr. Schuman, and Mr. Schuman's synopsis of it is still hearsay, inadmissible, unreliable. Your Honor has the testimony,
Mr. Repace; what he says is the case, but Mr. Schuman trying to resynthesize and say in his own words, clearly hearsay; not reliable. Your Honor, there is also
statements in that letter, I believe, trying to quote Mr. Schuman -- excuse me -- Mr. Repace as well as some of his reports. those events. That, again, is Mr. Schuman's rendition of That's double hearsay in that case, Your There's no foundation I think that
Honor, and would not be admissible.
for Mr. Schuman's -- it's not reliable. pertains to No. 33 specifically.
Want me to take them one by one, Your Honor; go through all of them? THE COURT: MR. FISHER: Go ahead. With respect to No. 34, Your
Honor, which is the letter, again, from Mr. Schuman to Ms. Overdurff, again talking about what Mr. Repace told
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him, again, Your Honor, that's hearsay.
Then he goes on
to talk about, you know, research again by information that was published in the 2004 Center for Energy Environmental Report that is enclosed. Again, Your Honor,
this is hearsay; goes even beyond what Mr. Repace has testified to here today. Your Honor, Mr. Schuman is,
again, talking about safe levels of -- unhealthy, unsafe levels of secondhand smoke. Again, Your Honor, he's not
qualified to restate Mr. Repace's testimony on medical conditions, which Your Honor has already ruled is not proper for Mr. Repace to talk about. Finally, Your Honor, with respect to, I believe it was 37, is that correct? THE COURT: MR. GOECKE: MR. FISHER: Yes. Yes. Again, Your Honor, the same
objections with respect to hearsay as well as the quotations about unhealthy levels and what is or is not proper with respect to Mr. Repace's statements; with respect to, Your Honor, in this case somewhat complicated, but Mr. Schuman is quoting or trying to synthesize Mr. Repace's comments to him, and further going on to talk about what Mr. Repace testified to or presented at a hearing before the Member Review Panel on another occasion. Again, that's all hearsay, hearsay on top of
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hearsay, and states with respect to what is safe levels for him in a medical situation; how unhealthy it is. of that would be admissible. Your Honor has already ruled with respect to Mr. Repace's inability to testify to medical issues as to those types of things; so, for those reasons, I will object to the admissibility of all three of those documents which, again, is Plaintiff's Exhibits 33, 34 and 37. THE COURT: Mr. Szymkowicz, any response? I have nothing more, nothing None
MR. SZYMKOWICZ:
more to add based on what we said before. THE COURT: do you have next? MR. SZYMKOWICZ: Just we are going to do the Let me ask you, Mr. Szymkowicz, what
wrap up of Mr. Repace, and then we have got Dr. Munzer, and that's it. THE COURT: Okay. How long is wrap up? Hopefully, two minutes.
Go ahead and do the wrap up.
BY MR. SZYMKOWICZ: Q. Mr. Repace, I direct your attention to page
seven of Judge Northrop's order regarding the HEPA filter. In the order, the Court stated, quote, "Perhaps" -- this is on page seven -- "Perhaps more persuasive is the
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evidence that Mr. Schuman has not taken action to abate the problem through the use of fans or of a HEPA filter. While Mr. Repace testified that such efforts would not suffice, the neighbors on the other side of Mr. and Mrs. Popovic," in parenthesis I'm going to add Dory Ipolito, "reported some success through the use of fans." Do you believe that Mr. Schuman would be successful in taking action to, quote, abate the problem through the use of fans or of a HEPA filter? A. Well, there are two separate issues here. Let's
take the HEPA filters first, H-E-P-A, and they are high efficiency particle filters. They certainly don't remove
gases, number one, and so there are a lot of irritating and carcinogenic gases in tobacco smoke, and so it wouldn't do anything for that at all. So it would reduce
the particle levels, certainly, to an uncertain amount. To really reduce particle levels efficiently, you have to pump a lot of air through these things, and mostly, I can tell you from my experience, a great number of my clients have actually tried HEPA filters, and they report that they were relatively ineffective. Q. Would the ASHRAE -MR. GOECKE: Move to strike. THE COURT: Go ahead. He's an expert. Objection, Your Honor. Hearsay.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
BY MR. SZYMKOWICZ: Would the ASHRAE studies that have been done
confirm your belief? A. They do. ASHRAE has said that filtration, and
ventilation and special separation without physical separation will not control levels of tobacco smoke. And the other issue as far as fans go, what I don't know exactly how they deployed their fans. From
what I understood, from Ms. Ipolito's testimony was that she had ceiling fans running, and to the extent that she did that, that would have increased the amount of mixing in her apartment, and that would have reduced local concentrations and just simply spread it all over the house, and so, you know, it might reduce the irritation somewhat, but I don't exactly know how she deployed her fans. Q. So do you have any belief as to whether Dory
Ipolito was successful in abating the problem through the use of fans or a HEPA filter based on her testimony? A. Based on her testimony, I think she was not
happy with the result. Q. Do you think there is a scientific basis as an
expert to justify her unhappiness? A. Yes, it's simply very, very -MR. GOECKE: Objection, Your Honor. It's
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speculative about her happiness. THE COURT: She said she was not happy, and the
question is, is there a scientific basis for that. THE WITNESS: Yeah. The concentration of
tobacco smoke was evidently not reduced enough so that she did not perceive it anymore. BY MR. SZYMKOWICZ: Q. In the Court of Special Appeals order, the Court
stated, on page nineteen, that the Court pointed out that Ms. Ipolito's testimony established if Mr. Popovic was smoking on his patio, and she shut her window, that stopped the smoke from coming into her unit, and she used a small fan to clear whatever smoke had entered the unit before she shut the window. This testimony further
supported a finding that no harm was being caused to Mr. Schuman. All he would have to do to eliminate any
offensive odor from the outdoor patio smoking was to shut his window, and if need be, run a small fan to clear any smoke that had entered his unit. The Judge pointed out that Mr. Schuman hadn't made any effort to try the simple solution. Do you believe that, quote, "no harm" was being caused to cause by -- strike that. Do you believe that no harm was being caused to Mr. Schuman from the Popovics patio smoking?
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A.
No, I don't.
It's simply a matter of the The windows, when they are
physics of the situation.
closed, do not prevent outdoor air pollution from entering indoors. They will reduce the rate at which it flows,
obviously, from outdoors to indoors, but, obviously, the gases and the fine particles that are in secondhand smoke can readily penetrate through the cracks around windows and doors, and in other words, there is a significant air exchange between outdoors and indoors, and whatever pollution is in the air will come indoors. And it has
been well established by EPA that outdoor air particles will infiltrate indoors with a penetration efficiency in this particle size range of close to one. a hundred percent. That is almost
In other words, a gas will pass
readily through into the interior, and you know, if it -typically, air exchange rate for this kind of house is about three-quarters of air exchange an hour, and you know, every hour, three-quarters of the air in that house will be replaced by outdoor air, so while it would certainly reduce the flow from outside to indoor, it doesn't necessarily eliminate it. What would eliminate it would be the wind blowing in a different direction. Q. A. And you have been published in medical journals? I have.
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Q. A.
And what were the subject areas generally? Generally, they have been risk assessment,
exposure assessment of secondhand smoke. Q. Did you attend the Member Complaints Panel where
Mr. Schuman and Mr. Popovic tried to resolve their differences? A. Q. did today? A. Q. I did. And did Mr. Schuman pay you for the time spent I did. You testified in the same similar manner as you
working on his case? A. Q. A. Q. spent? A. That's correct. MR. SZYMKOWICZ: Your Honor. THE COURT: Okay. It's time to take a break, I got a child support I have no further questions, He did. What was the rate? Two hundred fifty dollars an hour. And there was no flat fee; just every hour you
but probably be about 15 minutes.
matter to take care of and stretch. MR. SZYMKOWICZ: THE COURT: Be back 11:40.
Twenty of, maybe.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. here?
MR. SZYMKOWICZ:
Okay.
Shall we leave our stuff
THE COURT: (Recess).
Yes.
Mr. Repace said he was hungry.
I think he'll go to lunch. It's 12:00 o'clock.
I didn't anticipate that would take
as long as it did; so, let's go to lunch; come back at 1:00 o'clock. MR. SZYMKOWICZ: THE DEPUTY CLERK: (Recess - Lunch). MR. GOECKE: THE WITNESS: Good afternoon. Good afternoon. Thank you. Thank you, Your Honor.
CROSS-EXAMINATION BY MR. GOECKE: I would like to start my questioning by
directing your attention to what has been marked as Plaintiff's Exhibit No. 4, June 26th, 2009 report; not only been marked but it's been admitted into this case. If you could turn to page sixteen, please. Now, again, just to restablish, this report was designed to determine whether or not smoke was coming through the walls from the Popovics' unit into
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Mr. Schuman's unit, is that correct? A. Q. Correct. And to detect what amount of smoke might be
coming through? A. Q. Right. At the end of this report, you concluded, if you
look at number nine, on page sixteen, it says, "This unhealthy SHS infiltration." By that, I presume you mean
the Popovics' smoke coming into Mr. Schuman's unit? A. Q. Yes. Continue the quote now; start over: "This
unhealthy SHS infiltration condition can only be remedied by elimination of smoking in the interior of the neighboring" townhome. Did I read that correctly? A. Q. Correct. So your conclusion in this report was the only
way to stop smoke from coming in between the shared wall between the Popovic unit and for the Schuman unit, was for the Popovics to stop smoking? A. Q. A. Q. To stop smoking inside. Correct? (Witness nods head up and down). And the Popovics have stopped smoking inside,
haven't they?
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A. Q. A. Q.
They have. You don't dispute that? That's my understanding. And you have no evidence you have; you're not
aware of anything that would refute that statement? A. Q. No. So can we agree if they are no longer smoking
inside their unit; by them, I mean the Popovics, then the unhealthy SHS infiltration has ceased? A. Q. From the interior of their unit, yes. So as soon as the Popovics stopped smoking
inside their unit, as you state here in your report, that unhealthy condition stopped existing? MR. SZYMKOWICZ: line of questioning. Your Honor, I object to this
We concede that, but we had to prove
it because the temporary injunction would end after the trial; so, we need to have this testimony for the permanent injunction. THE COURT: I understand that. I think he has
answered the questions at least twice, if not three times. MR. GOECKE: I'll move on, Your Honor.
BY MR. GOECKE: Q. On page five of your report, Mr. Repace, you
include the quotation from Mr. Schuman's diary, and that quotation says, "3-2-09, 5:45 p.m., hung monitor from
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kitchen cabinet handle nearest location where heaviest smoke seems to enter," parenthetical, "near junction box," end parenthetical, "per instructions from Mr. James Repace, biophysicist, e-mail dated 3-2-09." Did I read that correctly? A. Q. Yes. So according to Mr. Schuman, he was to put the
monitor in the location where he smelled smoke the most? A. I think I directed him to put the monitor where
he smelled the smoke. Q. But my question to you, according to Mr. Schuman
in your report, you instructed him to hang it where the smoke smell was the heaviest? A. I don't know if I said the "heaviest." I don't
have a copy of that 3-2 e-mail, but, generally, I just tell them to hang it where they smell the smoke. Q. generally. Okay. I don't want to just talk about
I want to talk about what happened in this
case, but would you agree that where the smoke smells the most is where you are most likely to get the highest readings? A. Q. A. Not necessarily. But probably? Not even probably. You know, that may be the
area where he spends the most time, and that's why he
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smells the smoke the most there.
It could be worse in his
bathroom, but he doesn't spend a lot of time in the bathroom relative to spending it in the kitchen. Q. And in the next paragraph, at the bottom of page
five, in your report, Mr. Schuman writes, "Heavy smoke smell in kitchen near cabinet closest refrigerator, occasionally bathroom and closet under stairs, usually on week day evenings between 6:00 p.m. and 11:00 p.m., later on weekends." Did I read that correctly? A. Q. constant. Yes. So he's not reporting that the smoke smell is He's reporting that it comes on occasion in
certain locations, correct? A. Q. Yes. And in this report, you find that there was 0.05
micrograms per cubic meter of nicotine, is that right? A. Q. A. Q. Correct. And that's over 35.16 days? Right. And as you calculated it, that's eight hundred
forty-three hours, on page seven of your report? A. Yes. It was deployed for eight hundred and
forty-three hours, right. Q. Then you did something interesting. You
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adjusted the amount of time for which the sample is taken, and you assume, in your report, that there was no exposure to secondhand smoke for most of the day based on Mr. Schuman, is that correct? A. Q. Yes. And based on what Mr. Schuman told you, you
assumed that for about eighty percent of the time, there was no nicotine or particulate coming -A. That's not quite right. What I assumed, that
there was no smoking going on most of the time because, you know, based on time activity pattern studies, one would expect employed persons to be working outside the home for eight hours a day or more, and they would also be sleeping for eight hours a day; so, you have to adjust to the fact that people are not there and people are not awake; so, you have to adjust for the, you know, what is the exposure during the time when people are actively smoking because that's when you are going to have the greatest exposure -Q. A. But --- nicotine. You know, the smoke will be in
there at a lower concentration until it decays away. Q. The nicotine monitor you used sampled the area
24/7, is that correct? A. That's correct?
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Q.
You didn't turn it on and off just for the
period of times you assumed there was smoking, correct? A. Q. That's correct. So the .05 micrograms applies to the total
amount of time? A. Q. Correct. But your calculations discount about eighty
percent of that time, isn't that correct? A. Q. That's correct. And so it assumes or it calculates that the
point zero -- point zero five micrograms was actually collected in about one-fifth the amount of time that the monitor was actually deployed? A. No, it really doesn't assume that at all. It
assumes that that monitor was collecting nicotine for as long as it was there. What I was interested in, why
compressed time, as I was interested in what the peak exposure would be like because that's the concentration on which Mr. Schuman is going to have the strongest reaction. Obviously, in the middle of the night, if there's nobody smoking or during the day, if there's nobody there, the concentration is going to be lower because usually employed people will be home around the same time, and the question was, that's when he's going to smell it, and so what was the level like during the time that he was
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actually there and his neighbor was smoking; so, I adjust for that. Q. So your calculation is to determine the peak
level of exposure to Mr. Schuman; not the average level of exposure? A. That's correct. That's the one that is
important for irritation. Q. But your sampling -- again, your sampling did Your sampling came from
not come from the peak exposure. the entire 24 hour -A. Q. Correct.
And so by doing that, the 0.05 micrograms, you
convert that or you adjust to 0.23 micrograms per cubic meter, correct? A. Q. Yes. And then as you explained before, nicotine isn't
really the problem in terms of a cancer causing agent, is that correct? A. Q. That's correct. And the real problem is the polycyclic
hydrocarbons? A. Not just those. There are sixty-nine different
carcinogens, and I think that polycyclics are about ten of them. Q. In this case, you tested polycyclic
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hydrocarbons? A. Q. A. Q. what? A. I coverted it into a particulate matter; then I No, that was when I measured for the outdoor. Right? Here I measured nicotine. You measured nicotine; then you coverted that to
calculated risk from that because -- and I have model -Q. Q. That's okay. You answered my question.
And so to convert the nicotine that you measured
to the amount of particulate matter that you thought that you did not measure, correct, you did not? A. Q. Correct. You calculated the amount of particulate that
might be there? A. Q. A. Q. Right. To get that, you used a ten to one ratio? Yes. So, in other words, for every one bit of
nicotine that comes through the wall, you estimate there is ten units of particulate? A. Q. Correct. From that, you conclude that there's 2.3
micrograms per cubic meter of particulates in Mr. Schuman's unit at peak exposure, correct?
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A. Q.
Yes. Okay. But since that time, you changed your
conclusion, haven't you? A. Q. I have. And so you amended your report on August 24th,
2010, is that correct? A. Q. Exhibit 5? A. Q. Right. And on page seven of Plaintiff's Exhibit 5, you That's correct. And that's what has been admitted as Plaintiff's
now say that the appropriate ratio is one hundred to one; not ten to one; one hundred to one? A. Q. Yes. You said the reason why is because you were
unaware of the Waggoner report from 2004 that concluded the ratio was a hundred to one and not ten to one, is that right? A. Q. In part, that's correct. So when you did your first report, you were
apparently unaware of this standard? A. No, it wasn't a standard. What I was unaware
of, at that time, was that when nicotine goes through walls and particles go through walls, that they are removed at different rates. I simply assumed that ratio
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between particles and nicotine that are well established to be true in the area where people smoke continuously or periodically, but routinely, would be the same on the other side of the wall as they are in the smoking area, and then I became aware of the Bohac and Hewett report from Minnesota that -- which reported numbers as high as two hundred and fifty to one. I then did a literature I found the
search to see if there was any other data.
Waggoner report, and we were also beginning to get data from our experiments on the campus at Stanford University, which showed ratios in places where people were; had not ever smoked, of three hundred to five hundred to one. I began to realize that that ratio that was true in the smoking area did not hold in the nonsmoking area, and therefore, I had not estimated the concentration on the other side of the wall, and so I adjusted the report and updated it for that reason. Q. And when you updated the report, the parties And
here were actually in a hearing before this Court regarding the preliminary injunction that Mr. Schuman had requested, isn't that correct? A. Q. I don't recall when it was. But the point of this conversion factor is that
it's difficult to determine what the ratio is, isn't it? A. You have to go on the basis of what data is
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available. Q. A. Sure. So what we have is a lot of data that's been
taken in smoking areas, and a lesser amount of data that has been taken as it goes through walls. Q. A. Q. So the more -In nonsmoking areas. So the more data you have, the more accurate the
estimate will be that the ratio will be? A. Q. A. Q. Yes. There's not a lot of data right now, is there? No, but it's not zero. That's part of the reason why you and your
colleague at Stanford are testing this issue, isn't it? A. That is certainly part of it. Mainly, what we
would like to be able to do is to develop realtime methods for determining the permeation of smoke coming through the walls and the ratio of different compounds as it goes through walls. Now, we actually have experiments
planned for that, but we also have the whole year preliminary data, and we are using a variety of monitors, including fine particle monitors, nicotine monitors, both active and passive, and these PAH monitors that I showed you yesterday in conjunction with a different PAH monitor, and we are looking at the ratios of these instruments to
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determine whether we can have a signature to secondhand smoke as it goes through the walls and look at the ratio of the particles and the nicotine, and also to the volatile organic compounds that are also quite toxic, because there are a number of those as well; particularly the aldehydes. So it is an area of ongoing research, but
we also have these other papers that have now been published by the Harvard group in Boston, by the Roswell Park group in Buffalo, and by Bohac and Hewett in Minnesota. Those are now three published papers, and we
also have experiments from Neil Klepeis in San Jose; so, we know that the particle levels that are coming through the walls in some cases that have been looked at are fairly high. We also know that the nicotine levels that
are coming through in the larger number of cases that have been studied are pretty low. Q. A. That is --
I think you have answered my question. I think I am answering your question, but if you
want to focus further on it, I'll be happy to elaborate. Q. You have answered my question. Thank you.
But by taking the Minnesota study, it's difficult to come up with a ratio; no clear ratio? A. It probably varies from unit to unit. That's
why I used a conservative number of a hundred to one. Q. I want to show you; it's not been marked as an
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exhibit, but this is the Minnesota study that you have been referring to? A. Q. First Minnesota study; not the published one. Okay. November 2004, on page five of that
report, it says, "While tracer gas measurements may be valid to model the transfer of some environmental tobacco smoke constituents, it is likely that the movement of ETS between units," though often tortuously -- I'm sorry. me start over. "While tracer gas measurements may be Let
valid to model the transfer of some ETS constituents, it is likely that the movement of ETS between units through often tortuous leakage paths will not produce a single, quote, transfer coefficient that can be applied to all ETS constituents" A. Q. wall? A. No, I think what they said it depends on the I read that correctly?
Yes, you did. Basically, what that is saying is depends on the
constituent. Q. A. What's a constituent? Well, there are seven thousand different
chemicals in secondhand smoke, of which you have, depending on who is counting, a hundred and seventy-two to two hundred fifty are toxic, and those are all individual constituents that come from the wall, and they all
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individually will have different permeation coefficients. I don't dispute that. Q. But the amount of secondhand smoke that travels
through a steel wall and brick wall would be different, don't you agree? A. Yeah, I don't think you get much going through a
steel wall. Q. A. Between a brick wall? Brick walls tend to be a little porous, so there
would be something coming through a brick wall. Q. A. Q. A. Q. Brick wall and plaster wall would be different? They would. Plaster wall and drywall might be different? Yes, they could be different too. Thank you. Now, in the Minnesota report, the
2004 report, the concentrations they found in the nonsmoker's unit were very low, isn't that correct? A. Q. A. Concentrations of what? Nicotine? Yes, they were well -- very low compared to the No one disputes that.
smokers' units, yes. Q.
In fact, the range in the nonsmoker's unit was
zero point zero to zero point zero one six micrograms per cubic meter, isn't that correct? A. I don't have it in front of me but --
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Q.
Let me show you what I'm reading, page 56 of
that Minnesota report. A. Q. A. Where are we? Highlited section? Yes, zero to five point five seven micrograms
per cubic meter -- those are micrograms per cubic foot. We are talking about micrograms per cubic meter. Q. A. Q. A. Okay. You say the .57 is actually quite high?
That's one of the highest numbers I have seen. Mr. Schuman's unit was 0.05, correct? Yes MR. GOECKE: THE COURT: Court's indulgence? Yes.
BY MR. GOECKE: Q. Mr. Repace, like to turn your attention now to
what has been marked as Plaintiff's Exhibit 7; has been admitted into evidence. report in this case. A. Q. This is your July 18th, 2011
Do you have that in front of you?
Exhibit 7, yes. I believe so, yes. And, again, these results are from when
Mr. Schuman's window was open, and it happened to coincide with the time when Mr. Popovic smoked outside, is that correct? A. Correct.
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Q.
But you didn't do a test about what the levels
were when his windows were closed, did you? A. Q. No. And I think you testified that the levels of --
now, I think I should also point out, you're not measuring nicotine here anymore, are you? A. No, we are measuring particulate polycyclic
aromatic hydrocarbons. Q. A. Q. Polycyclic ... PPAHs for short. I was trying to impress everybody. I guess I
didn't do a good job. They come from a lot of different sources, don't they? A. Q. A. Q. A. Q. A. Q. A. They do. Grilling meats, for example? They can, burning meats. Car exhaust? Diesel exhaust. Shoe polish? Particulate matter? Common household cleaning items? No, not particulate. These are products of
combustion. Q.
This monitor won't measure those.
Okay.
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A.
This measures only particles surface bound,
polycyclic aromatic hydrocarbons. Q. A. And these are generally? What we call four or more; in other words,
benzene rings, and these are the particulate phase polycyclic aromatic hydrocarbons, and a large number of them are carcinogens. carcinogens. I have counted ten in tobacco smoke
There are more than a hundred PPAHs.
(Recess.) BY MR. GOECKE: Q. Back to your July report from this year, So, again, you tested Mr. Schuman's -- inside
Mr. Repace.
of Mr. Schuman's unit, is that correct, in July of this year? A. Q. Yes, right. You had two of the devices that you brought to
Court yesterday, correct? A. Q. A. That is correct. What's that device called again? It's called the EcoChem Pas E-C-O-C-H-E-M,
P-A-S, 2000CE, and it is a particular PAH monitor, to make it simple. Q. A. Q. So it measures PAHs? Correct. And so instead of coverting the nicotine you
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found to PAHs, like you did in the first report, here you just measured PAHs, is that correct? A. No, I did not convert the nicotine into PAH's.
First report, I converted them into particles. Q. A. Q. Particles, okay? Correct. And the result you found for Mr. Schuman's
living room and his dining room, would you agree, those were peak exposure numbers? A. Q. A. Were they peak exposure numbers? Yes? No, they were median exposure numbers. They
were not peak. Q. A. Q. lower? A. Q. lower? A. Q. Presumably, it would be lower, yes. At the time you conducted the experiment was the Yes, they were. If the windows were closed, numbers would be But Mr. Popovic was smoking? Yes. And so if he's not smoking, the numbers would be
time to -- most likely time to yield the highest results, isn't that correct? A. Not necessarily. They could have been higher if
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he had been smoking later at night or if the atmospheric conditions were different. Q. A. Q. Or if there were more smokers? Or if there were more smokers. When we are talking about a nanogram, what are
we talking about exactly? A. Q. A nanogram is a billionth of a gram. How much does a gram weigh? Can you equate an
object to a nanogram, or to a gram, rather? A. gram. Q. A. Q. A. Q. A. Q. A. Q. So a large pinch of salt is one gram? Or so, yeah. You are measuring nanograms? Yes. Nine zeroes, right? Yep. I'm sorry, eight zeroes? It's nine figures, yeah. So that's what one nanogram looks like You know, a large pinch of salt might weigh a
(indicating)? A. Q. A. Q. Yes. Very small? Compared to a gram, yes. Compared to anything?
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A.
No, no, no.
Depends on the toxicity of what you
are exposed to. Q. You measured two nanograms in the living room at
the height, so in your chart, on page eight of your report, let's go back to that? A. Q. Yeah. You have two bars. You have background levels.
You have smoking levels both for the living room and the dining room, is that correct? A. Q. right? A. Q. was two? A. Q. A. Q. A. Q. A. Q. A. Q. Yes. So it doubled? Correct. To two Nanograms? Yes. But that's a really low level, isn't it? No, it's doubled. But did you believe zero is zero? Yes, but -Just because something is doubled, doesn't mean Right. And then when Mr. Popovic was smoking, the level Yes, that's correct. And so the living room background level is one,
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it's big? A. excuse me. No, it's doubled over the background. Look --
The point of the experiment was to demonstrate I didn't use the numbers to calculate a
smoke intrusion. risk. Q. today? A. No.
That wasn't what was at issue here. But that's what you testified about earlier
What I testified, first of all, was about
the indoor risks and indoor irritation, and here, the purpose of the experiment was simply to show whether or not smoke was coming in the window objectively as Mr. Schuman testified or as he related to me, and as my calculations predicted with the windows open, but I didn't do a risk assessment based on these numbers. the intent here. Q. A. Q. You did no risk assessment? Not an explicit risk assessment, no. So the purpose of the study was to see if smoke That was not
comes through an open window? A. The purpose of the study was to verify
Mr. Schuman's complaint that, A, smoke came in his window from Mr. Popovic's smoking despite the fact that he had gone a considerable distance away, number one, and that it was irritating, and it was. There's not a dispute that these particles are
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carcinogenic, but I didn't calculate a specific risk related to it. Q. That wasn't the point.
So when you conclude, on page 10 of your report,
when you say, "I conclude, to within a reasonable scientific certainty, that outdoor smoking by Mr. Popovic in his front yard at eight and 13 meters distance from Mr. Schuman's open windows is both irritating and carcinogenic" -A. Q. A. Yes. -- but you did not do a risk assessment? I didn't calculate a risk as I did with the
indoor case, that is correct. Q. A. Q. A. So what's your basis that it's carcinogenic? Because what I'm measuring is carcinogenic. Because the substance, itself, is carcinogenic? Yes, also a marker for secondhand smoke, which
contains a large number of other carcinogens, including, to be specific, nitrosamines. Q. Unhealthy in the sense whenever you are exposed
to secondhand smoke, it's carcinogenic? A. Q. Yes. When I was walking to the Court, I was walking I was exposed to carcinogenic material;
behind a smoker.
that's of a carcinogenic nature; that was unhealthy, right?
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A. Q. A.
Yes. Because all exposure is unhealthy, right? You have to define the word "exposure."
Exposure means concentration in time, and so you have to be exposed to a given concentration times a given time. That's what we call, basically, the exposure dose. Q. A. So it's possible it was not unhealthy? No, it's not. What I'm saying is that the It has
nature of the aerosol is that it's a carcinogen.
other toxic materials into it; so, when it's a carcinogen and it has tumor initiators in it, they can vary DNA, and they can increase the risk of cancer. Whether it's a
significant increase of cancer or not depends on the concentration and the duration of the exposure, and I didn't calculate that for the outdoor case. MR. SZYMKOWICZ: a minute? THE COURT: Sure. Your Honor, may we approach for
(Whereupon, Counsel approached the bench, and an off-the-record discussion ensued.) (Whereupon, Counsel returned to their trial tables and the following ensued.) BY MR. GOECKE: Q. I apologize; I forget exactly where we left off.
I think what you were getting at is whether something is
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dangerous or unhealthy depends on the time that you are exposed to it, the concentration and the concentration of your exposure? A. I think exposure can be unhealthy without There are
raising the issue to a significant risk.
trivial exposures that lead to what we call the de minimis risk. They are trivial risks, and there are other
exposures that are significantly unhealthy, and they may raise to the level of de manifestis risk or, as OSHA likes to talk about, it's a significant risk of material impairment of health; so, there are different degrees of unhealthiness. Does not change the basic nature of the It's an unhealthy aerosol, but you
the aerosol, itself.
have to do a risk assessment to determine whether the risk is trivial. If you walk through a plume of bus exhaust occasionally or a cigarette plume occasionally or whether there is repeated chronic exposures, and that's one issue. And the other issue was, you know, do they have non-cancerous effects, such as irritation. That was the
main issue, I think, in making this particular measurement. Mr. Schuman was complaining that he was
denied use of his backyard; that he had to close his windows and because of the irritating nature of the aerosol, and the question was what's the concentration of
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smoke as it comes over; does it actually reach there? I was going to do a controlled experiment to determine this, and we wound up with a natural experiment, which was fine. Q. So the two nanograms, was that trivial risk or
significant risk? A. Q. A. I didn't do a risk assessment based on that. So you can't say? Depends on the degree that he would've breathed
that, so I didn't do the calculation. Q. You demonstrated the EcoChem Pas machine in the
Courtroom yesterday, is that right? A. Q. Courtroom? A. Q. A. Q. I did. That reading showed two nanograms? Yes. The same level you had in Mr. Schuman's living Yes. And you took a reading of the air in the
room while Mr. Popovic was outside smoking, is that right? A. Same median level. I think the peak levels were
as high as ten or twelve. realtime data. Q. A.
I haven't shown the actual
If you look at realtime data for --
Mr. Repace, your report -Fluctuates up and down.
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Q. right? Q. A. Q. A.
Mr. Repace, your report says two, isn't that It says two is the median level? Uh-huh. I took data on ten second basis for 20 minutes. You prepared this report? Here we just looked at one 10 second
measurement. Q. Thank you. You prepared this report for this
litigation? A. Q. dated? A. Q. A. Q. A. Correct. Mr. Szymkowicz asked you to prepare this report? He asked me to make a measurement. Mr. Schuman asked you to prepare this report? I'm sorry; did Mr. Schuman? I'm sorry; Yes. You prepared it in July, July 18th, 2011? It's
Mr. Schuman; not Mr. Szymkowicz. part in this Q. didn't we? A. Q. Perhaps, we did.
Mr. Szymkowicz had no
In fact, we talked about it at your deposition,
We talked about your wind rose calculations.
asked you what was the best way to get the true samples; get the true levels of particulate in Mr. Schuman's unit,
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and you agreed that it would be to actually sample the air, isn't that right? A. Q. Yes. And you knew that this report would be used in
this litigation, right? A. Q. A. Q. A. Q. A. Q. A. Is that a question? That's a question. Yeah. You are Mr. Schuman's expert witness? Sure. You are here to help his case? That's right. You are here to help him win, is that right? I'm here to inform the Court as to what my I think the Judge will decide who wins.
measurements are. Q. A.
But you are not here to help Mr. Schuman? I'm here to report what I measured. It
certainly does help Mr. Schuman's case, but, you know, I could have made measurements that turned out badly for it; I would still report those. Q. Mr. Repace, you have done a study in Delaware,
haven't you, to test the levels of particulate in areas before and after a smoking ban? A. Q. Yes. And what year did you publish the findings of
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that study? A. Q. A. Medicine. Q. A. Q. A. Q. That was in 2004? Correct. Was that a peer-reviewed article? It was. Refresh our recollection, again, about what a I did. Where did you publish it? Journal of Occupational and Environmental
peer-reviewed article is? A. Peer-reviewed article is an article which is
reviewed by experts in the field and vetted for scientific judgment and accuracy of the data. Q. So your report has undergone some scrutiny
before it was published? A. Q. Yes, it certainty has. Do you remember what the levels of particulates
were that you found in the casino and the bars, restaurants, before the smoking ban was in place? A. Q. A. I remember what the levels were in the casino. What were they? They were a hundred -- I believe a hundred and
sixty-three nanograms per cubic meter was the highest level I have ever measured in a casino.
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Q.
What were they when -- you went back to the
casino after the smoking ban was in place, right? A. Q. A. Q. I did. And you tested the air in that casino? That's correct. How long had the smoking ban been in effect when
you took that sample? A. Q. A. Probably about three months. Three months? As I recall. I made measurements around late
November of 2002, and then I went back again probably in January or February of 2003 and made follow-up measurements. Q. A. Q. Is this the report that we are talking about? That is correct. And for the record, this is called, Respirable
Particles and Carcinogens in the Air of Delaware Hospitality Venues Before and After a Smoking Ban, by James Repace, MSC, the Journal of Occupational and Environmental Medicine, Volume 46, November 9, 2004, page ninety-nine of that journal. You have a chart that shows the levels that you found after the smoking ban was in place. attention to that now. A. I do. Directing your
Do you see what I'm referring to? The
That column is for the casino.
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average PAH of micrograms per cubic meter after the ban was three point seven. Q. And this report says that the smoking ban
worked, right? A. Q. Yes, it did. The workers that used to work in the casino were
no longer exposed to unhealthy, unhealthy levels of smoke? A. Q. They weren't exposed to smoke at all. Because there's only three point seven particles
in the air? A. That was the background level likely from I-95,
which is not very far from that casino. Q. In other words, the background level at the
casino is higher than what is in Mr. Schuman's living room and dining room when Mr. Popovic is sitting outside his unit smoking? A. That's true. It was higher than the median
level that we measured, but it was not higher than the peak level. Q. Thank you. You have answered my question.
Mr. Repace, what is the chemical component or do you know the chemical component in cigarette smoke that gives it its odor? A. Odor is a complex phenomenon. There are many
particles and gases in tobacco smoke.
Many of them are
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odorous. Q. A. Q. threshold? A. PYRIDINE. Q. something? A. Q. Yes. If I told you it was ten parts per billion, And the olfactory threshold is when you smell I don't know what the olfactory threshold is for Is PYRIDINE one of those odor -PYRIDINE, yes. And doesn't that have a very low smell
would that surprise you? A. Q. A. Q. A. No. That's a very small amount, isn't it? Small is -Relevant? In relative terms. I can tell you one of the
components of tobacco smoke is acrolein, which is a tertiary aldehyde. harmful to the lung. It's extremely toxic. It's very
It is not carcinogenic, and the safe
level for exposure of chronic exposure is .01 parts per million; so, that's -Q. A. Q. But that's? Ten parts per billion. That's not related to smell?
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A.
It has its own odor, but its odor threshold is a It can harm you at levels far
good deal higher than that.
below your ability to detect it by the olfactory sense. Q. Carbon monoxide can injure you; it doesn't
smell, right? A. Q. A. Q. It's an odorless gas, that's correct. But it's very dangerous? Very dangerous in certain concentrations, yes. Conversely, there are things that smell putrid
but don't really effect our health? A. That is also correct. Why they put odorants in
natural gas. Q. So it's possible to smell something without it
injuring you? A. Q. Yes, it is. You have mentioned no safe threshold level and
in 2006, I think it's the 2006 Surgeon General Report? A. Q. A. Correct. And what does that mean exactly? That means they have never discovered a level
below which tobacco smoke does not have some toxic action. Q. A. They have never below which -- say that again? Below which tobacco smoke doesn't have some
toxic action. Q. So it's not that --
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A. Q.
Carcinogenic action. So not that such a level doesn't exist; they
have never found it? A. No, I think probably such a level doesn't exist.
Obviously, you could lower the concentration so that the risk from tobacco smoke is a mixture. the de minimis level. Q. I think you testified they had never done a It might be below
study, epidemiological study, on levels of exposure that Mr. Schuman is being exposed to? A. Q. I'm not aware of any studies. Uh-huh. Just prepared a crude chart here. This
axis we have time this axis, we have exposure.
Isn't it
fair to say if we are going to do a chart that shows where people get diseased, greater the time, greater exposure is when we are more likely to have lung cancer, heart disease, things of that nature? A. If by exposure, you mean concentration --
exposure is concentration times time. Q. A. Okay. Okay. So you might want to change that
horizontal axis? Q. A. Q. I do agree. Yes. So the more time and the more concentration, the
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more likely we are to find where people get disease? A. Q. That's correct. They don't test for down here, do they, for
secondhand smoke? A. all. Q. A. It's too hard? It's not hard. It's just that epidemiologists They don't generally measure concentration at
tend to use the tools at hand that they are trained to use. Most epidemiologists do understand -- understand They don't make measurements. They understand
exposure.
the response very well.
That is the disease, itself, and They
they are very, very good at measuring the disease.
are very poor at assessing exposure, and so they tend to use questionnaires, which are actually very crude. If you look at the parameters that determine exposure to a pollutant, generally they don't measure any of them at all. or are you not? They simply ask people: Are you exposed
And most people know if they are exposed
to a high concentration of something because they can smell it or they have some somatic effect. Other people
may be exposed without even knowing it with respect -Q. Mr. Repace, I don't believe you're responding. Are there studies of low time and low concentration exposures to secondhand smoke? The answer
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is no, right? A. Q. A. Generally, people in that category -Mr. Repace, the answer is no, right? They do study them. They do look at risk of
people who say that they have little exposure, self-reports, and there are a few studies that actually measure cotinine, which is a nicotine metabolite in body fluid, but very few people have no cotinine in their body fluids. Q. What's the lowest level of exposure that is
shown disease -- let me rephrase. In terms of literature out there, what is the lowest level of exposure to a person that causes disease, exposure of secondhand smoke? A. None has ever been found, so they basically have
not found such a level, and based on extrapolation from the risks in smokers and the risks that have been observed in nonsmokers, and the nature of dose-response relationships, and the nature of carcinogenic action, they have determined that there is no threshold for -- that they can say is absolutely safe. Q. Because they haven't found it yet; so, what they They
do, is they assume that there's always some risk.
assume that with all exposure, over time, there's going to be a little bit of risk, isn't that right?
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A. Q. A.
Generally, that is correct. This is how you would chart it, right? Not necessarily. There are three ways you could
draw that line.
You could draw it convex, you could draw That is
it concave or you can draw a linear relationship. basically the default. Q. A. Q. A. The linear what I have done, linear one? Yes. That's the same as no safe level?
That is one of the assumptions, yes; the more
for certain diseases that are caused by tobacco smoke exposure, including secondhand smoke exposure. lot of evidence to show that the dose-response relationship is convexed; that is, it rises very steeply at low doses; so, you have to be very careful about what you are talking about. evidence of nonlinear? In the case of heart disease, there's a good deal of evidence that it's nonlinear. published. Q. You talked frequently about people complaining That has been You know, is it linear or is there There's a
or several reporting symptoms, isn't that right? A. Q. odors? Yes. Do people complain of headaches from perfume
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A. Q. A. Q. A. Q. A.
Yes, they do. What about from cleaning product odors? They may. Cooking odors? Headaches from cooking odor, I don't know. Landfill odors? I don't know if they complain of headaches from
landfill odors; certainly obnoxious. Q. A. Q. to people? A. Some of those odors could very well cause What about paint odors? I think paint odors, yes. Couldn't all these odors cause some irritation
irritation, yes. Q. A. Q. In their nose and throat? Yes. Might even call it bronchitis on occasion,
couldn't they? A. Q. That I don't know. The Junker article you referred to involved
people that suffered; that self-reported symptoms? A. I think they did two kinds of experiments. I
think they did an eye-blink study, and they did self-reports as well. And I believe they used an olfactometer so they
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could compare different subjects who have different odor thresholds to one another, so they could normalize. Q. So there were two aspects to the study: One,
what the people's reactions, what they felt, what they experienced subjectively? A. Q. Yes. Another test focused objectively; how they
responded to secondhand smoke? A. Q. sorry. That is correct. Isn't it true that the levels in the -- I'm Isn't it true that the objective portion of that
study found that there was no irritation? A. Q. A. Q. No, I don't think that's true at all. This is the study you are referring to, right? This is the Junker study. Acute Sensory Responses of Nonsmokers at Very
Low Environmental Tobacco Smoke Concentrations in Controlled Laboratory Settings, and Martin H. Junker, J-U-N-K-E-R, is the lead author on this report? A. Q. Right. Environmental Health Perspective, Volume 109, On page 1,050 of that report, if I
No. 10, October 2001.
can direct your attention, it reads, Breathing Patterns and Eye-blink Rates parameters (inhalation volume and inhalation flow rate) used as markers for olfactory or" --
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tell me what that word? A. -- "trigeminal activation did not show any
significanct decrease during ETS exposure" Yes, they go on to say, "There was a positive yet insignificant correlation between eye-blink counts and log-transformed ETS particle concentrations." So there was a relationship. Q. A. Q. A. Q. There's no question pending. Exactly. It was insignificant? Insignificant in the statistical sense. Thank you. Mr. Repace you testified that
remedial filters, HEPA filters, improved; HVAC systems can mitigate but not eliminate exposures to secondhand smoke, isn't that right? A. Q. A. Q. That's correct. You do agree they can help? Yes, they can help. In fact, the Minnesota report that we referred
to earlier, a lot of the subjects in that study reported better results after the remedial efforts had taken place, didn't they? A. They reported that the air filtration reduced;
most of them did, yes, but did not get eliminated. Concentrations remained.
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Q.
You have also testified about some studies that
found about fifty percent of people living in apartments experience some type of secondhand smoke exposure, isn't that correct? A. Q. A. Correct. So this is a common thing? Yes, it is. MR. GOECKE: Court's indulgence?
BY MR. GOECKE: Q. Mr. Repace, if we could go back to your slide
show presentation and take a look at slide number two, please? A. Right. (Off the record discussion ensued.) BY MR. GOECKE: Q. Thank you. So, again, this slide is on smokers,
right; not secondhand smokers? A. Well, I'm sorry; not people exposed to No, these people are also exposed to The smokers are the biggest passive
secondhand smoke. secondhand smoke.
smokers as well, but they are exposed to their mainstream smoke and their own sidestream smoke. Q. Fair enough. Fair enough. In fact, the people
who never smoked regularly could be exposed to secondhand smoke, isn't that correct?
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A. Q.
Some of them quite definitely are. Right, but there's no chart, is there, for In other words, if we
levels of secondhand smoke?
replaced those four lines, instead of different amounts of cigarettes that people ingested, levels of secondhand smoke that people were exposed to? A. question. Q. The thrust of my question is simply this: We I'm sorry; I didn't quite get the thrust of your
can quantify four different categories of people here: People who never smoke; regularly current smokers who smoke one to fourteen cigarettes a day? A. Q. Right. Current smokers who smoke fifteen to twenty-four
cigarettes a day, and current smokers who smoke more than twenty-five cigarettes a day, right? A. Q. Correct. How come there's no chart for people exposed to
different levels of secondhand smoke to point five micrograms to ten micrograms to a 100 micrograms? A. Very good question. Because no one has ever
funded such a study.
These studies are extremely
expensive to do and take very long periods of time to do, and these people serve as their own controls; so, this is a prospective study. This is the very best kind of
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epidemiological study.
It's enormously expensive to do.
Almost all of the studies that have been done in the past, in the start of 1951, were mainly aimed at smokers because it was very easy to use nonsmokers as a control and just look at the risks with increasing levels of smoke, which they quantified generally as pack years of smoking; so, which is also a very crude method in itself, but it was certainly enough to determine what the risks of smoking were like. If we could do a study like this, I think we would find that -MR. GOECKE: He's speculating. You have answered the question, Mr. Repace. The answer to the question: study. No one has paid for it. Yet no one has conducted -A. They have conducted this kind of -- done -- no, They all don't There is no such Objection, Your Honor. Objection.
they have done epidemiological studies.
come back positive, but if you take them in the aggregate, they are positive. Q. Mr. Repace, there are populations of people
exposed to secondhand smoke that don't show any increased risk for developing lung cancer or heart disease, isn't that true?
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A. Q.
That is true. Because of that, we don't know where the
threshold is, do we? A. No, that's not why we don't know where the
threshold is. Q. You assume, Mr. Repace, that there is no safe
level, but it could be that there is, isn't that possible? A. I think the Surgeon General and the National
Cancer Institute have proclaimed that there is no safe threshold. That is not my finding. That is the generally
accepted consensus. Q. But it's possible, Mr. Repace, that there is a
safe threshold? A. Q. You have to define what you mean by safe. When I was exposed to smoke when I walked into
the courthouose this morning, it's very possible I will never develop heart disease or lung cancer from that exposure, isn't it? A. Q. A. there. That's because the risk is de minimis. Exactly. That does not mean the potential for harm isn't It's just that your exposure was brief, okay. But if someone, for example, for a worker in an outdoor cafe who got exposed to those outdoor levels all the time, that risk would be significant.
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Q. A. Q.
Would be higher? Been measured. It is higher.
And so what we are talking about here is the
possibility of harm? A. Q. A. Yes. Not even the probability; just the possibility? No, the probability of harm is always there.
Whether it occurs or not depends on the exposure; that is the concentration times the time, and also what the individual's susceptibility is. susceptibility. For example, if this whole Courtroom suddenly were thrown into a pool of sixty degree water, some of us would be able to swim for an hour or two in that water without sinking. Others among of us would sink to the We all have different
bottom right away because we differ in our individual capacities to withstand stress, and someone who is already experiencing symptoms from secondhand smoke or from active smoking is in a high risk category; so, those persons would have a lower threshold, whatever that is, than someone who is very durable. In fact, if you look at this
curve, you'll see there are even some smokers who live past 90; although not very many of them by percentage; whereas, four percent of nonsmokers live past a 100 years old, so people do differ in their individual
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sensitivities; so, I would say if you are experiencing some kind of somatic effect, probably suggests that you are in a higher risk category because your body is being affected. Q. In fact, that's a really good point. Even
people who smoke a lot of cigarettes can live to be very old, can't they? A. Very few. And they are offset by the ones that
die in their forties. Q. Determines on a lot of factors; determines on
your exposure; determines on your -- it's based -A. Q. Adjusted for exposure. So it's based on exposure, right? It's affected
by exposure; affected by your genetic makeup? A. Q. eat? A. Q. A. Q. A. Q. Sure. What you do for a living? Also true. Where you live, host of factors? General state of health. In fact, isn't it true, Mr. Repace, of smokers, That's right. Affected by other aspects of your life; how you
only about ten percent of them ever develop lung cancer? A. No, I think my statistics that I understand
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about the probability of an active smoker getting lung cancer was about sixteen percent. Q. A. Q. Sixteen percent? Yes. So assuming that's true, that means you could be
a smoker, and there is a possibility of developing lung cancer but not even a probability? A. No, no, I think a probability for an individual. It's a
You can say it's a possibility for the group. probability. Q. A. We are talking about individuals? Right.
All we can say, all I can say about an
individual like Mr. Schuman is I believe that he's been transferred from a lower risk group into a higher risk group because of his exposure, and he's reporting somatic effects. Whether you want to characterize them as health That
effects or not, he's reporting somatic effects. suggests that the smoke is affecting him. Q. don't you? A. Q. A. Q. A. This issue being? Secondhand smoke. Secondhand smoke, it's what I do. You dedicated your life to --
Mr. Repace, you care a lot about this issue,
Since about 1975, it's been my research
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interest, that's correct. Q. A. It's also your employment, right? I do gain employment from it. I also have a
federal pension. Q. A. Q. A. Q. But Mr. Schuman is paying you to be here today? He certainly is. $250 an hour? Correct. When I deposed you, I think you had already been
paid $5,000 on this case, isn't that right? A. Q. If that's what I said, yes. Since that time, you have prepared another
report; prepared for this trial; actually sat in on this trial for three days now, isn't that correct? A. Q. I was asked to sit in for three days, yes. So at two hundred fifty dollars an hour, you
have made at least $10,000.00 on this case, haven't you? A. Q. A. I think that's probably correct. That's what motivates you, isn't it? Certainly sweetens the pot, let's say. I learn a lot from getting That's one of the reason I chose to No, it's
my research interest. involved in trials.
do them because you can discover things that you, otherwise, would never be able to learn as a researcher because you simply couldn't gain access to it. Just the
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whole process of discovery, alone, I can ask stuff that I could never get otherwise. It informs my research. One
of the reasons I'm able to be productive as a scientist is because I can get information that no one else can get. Q. You have been involved in secondhand smoke How far back do we go?
issues since the 1970's? A. yes. Q.
I would say I got involved around 1975, 1976,
And you said you were instrumental in bringing
about the 1986 report on secondhand smoke, isn't that correct? A. I didn't -- you know, I wasn't instrumental in I provided the
making the Surgeon General do the study.
spark that got the Department of Health and Human Services interested in doing the Surgeon General's Report. I
funded the National Academy of Sciences to do a report on environmental tobacco smoke in, I think it was Nineteen -about 1983. I was asked to do that by the Assistant Administrator for Air Noise Radiation at EPA. this at my own volition. I didn't do
He became aware of my work on
secondhand smoke, and he became very interested in the topic, and he asked me to fund a study at the National Academy of Sciences, and he gave me seventy-five thousand dollars to give to them, and I knew that wasn't enough to
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do the study; so, I went to the Office on Smoking and Health, on my own, and I asked them if they could contribute another seventy-five thousand dollars because I knew what these studies cost, and they agreed to do it, and that he co-funded it, and then they took the same data, and they decided to do their own report on it. So we wound up, back to back, with two reports: one, from the National Academy of Sciences and one from the Surgeon General, and they both came to the identical conclusions, but in the Surgeon General's Report, went through an entirely different peer-review process that was internal and external to the Department of Health and Human Services; so, they had their own scientists, their own physicians, their own epidemiologists look at the data so that they could formulate a decision that the entire department of the Surgeon General could sign off on. Q. So it's clearly important to you that this
research get done? A. Absolutely. To me, it's as important as the
original 1964 Surgeon General's Report on active smoking. Q. Especially important because this is still a
developing field, isn't it? A. Yes, this is probably the last big important
problem that remains unsolved. Q. I think you said it was really not until the
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1980s that people started focusing on this issue? A. Yes, I think the original paper I did in 1980
was published in Science with Dr. Lowrey, followed by the hearing on the report in 1981 that showed lung cancer was quite elevated in the spouses of smoking -- nonsmoking spouses of smoking husbands. Those two reports I think
really defined the field, and my risk assessment, in 1985, I think really got everyone interested in the issue. Q. As we develop more data in the field, we
understand it better, don't we? A. Q. learning? A. Q. A. Q. They evolved. That is correct. We do. The standards are changing because we are still
Can you go to slide twenty-nine, please? Sure. Thank you. Again, this is the picture of
Mr. Schuman's unit next to the Popovics' unit. Mr. Popovic's unit and Ms. Popovic's unit is on the left, Unit R. Unit Q on the right, that's Mr. Schuman's unit.
You have approximated distance from the chair in which you saw Mr. Popovic smoking to Mr. Schuman's windows, is that correct? A. Q. Yes. And the window closest to Mr. Popovic's unit is
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for his dining room, is that correct? A. Q. A. Q. That's his dining room. That's about 27 feet from Mr. Popovic's chair? Correct. When we were here last year for the preliminary
injunction hearing, you testified that, typically, secondhand smoke dissipates after 25 feet, didn't you? A. What I testified about was that in the
experiment I did at the University of Maryland, Baltimore campus, under the atmospheric and wind conditions on the day that I made the measurements, that the smoke dissipated after twenty-five feet, and that was not surprising, as I said, because it was a very windy day, and it was a very strong sun. Strong sun means strong
insolation, incoming solar radiation, which creates a lot of turbulence, and the combination of turbulence and high winds leads lower downwind concentration; so, under the circumstances of that experiment, I did not see smoke go beyond twenty-five feet. beyond twenty-five feet. That doesn't mean it can't go It just means under the
circumstances, circumstances of that experiment. Here is the second experiment that was done under -Q. Let me stop you right there. I believe that Judge Northrop asked you how far
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would Mr. Popovic have to go to protect Mr. Schuman?
How
far would he have to go for a walk so that when he smoked, smoke would not bother Mr. Schuman? And you said about 25 feet, isn't that right? A. Q. A. Well, that was the advice that I gave to people. That was based on your prior study? Based on my prior study because I had no other I had not done a calculation like I
data at that point. did for this case. Q.
So, as you say, the standards are evolving over
time, aren't they? A. They are. MR. GOECKE: THE COURT: questions? CROSS-EXAMINATION BY MR. POPOVIC: Q. beginning. Mr. Repace, I would like to start from the That doesn't mean that I will take a lot of Thank you. Mr. Popovic, do you have any
your time or a lot of the Court's time, but just explain how you got in touch with Mr. Schuman? A. Q. I believe Mr. Schuman got in touch with me. It's not that your son, who I was living three
units farther, that connected Mr. Schuman with you? A. My understanding that is my son, Max, Dr. Max,
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who did live up three units up from you, in the unit just down from the end, was a friend of Mr. Schuman's, and my understanding from Mr. Schuman is that he and Max were having pizza together one evening, and he, Mr. Schuman, complained that he was having this problem. And Max, said, Well, you know, my father does this stuff. You ought to get ahold of him.
And, yes, that's when Mr. Schuman contacted me. Q. Mr. Repace, you remember two days ago we had two
witnesses, Mr. and Mrs. Hammett, who complained that 15 years ago they were bothered by cigarette smoke, and they were living, at that time, at the same distance as your son from the Popovics' house? A. Q. A. Q. A. Q. Yes. Did your son complain about smoking? He did. He did? Yes. And did your son complain about his first door
neighbor smoking? A. Q. He did. Did you measure smoke, and nicotine and
carcinogenic particles in his unit? A. No. His main problem was coming not through the
wall, because there's a brick wall between those two
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units. Q. question: A. Q. A. Q. Excuse me. That's not the question. The
Did you measure air in his unit? No. No? Why not when it is so dangerous?
He did not ask me to make a measurement. Uh-huh. So according to your answer, might be
said for you Mr. Schuman's health is more important than your son's health? A. I wouldn't agree with that statement. I think
Mr. Schuman's health is important, and my son's health is important on the other hand, you know. Q. But he complained, and you didn't measure? You
did nothing about that? A. No, because my son was not interested in getting No, he was not
involved in any complaining proof. involved.
I think he had -- he did complain to his
neighbors, is my understanding, but he had intended to move, and he did move, and he now lives in New Hampshire. Q. But, Mr. Repace, I would like to remind you, It's a question
it's not a question of complaining proof.
of a big danger for health; so, you didn't do anything about your son's health, who was exposed to smoke from both sides of his unit? A. Well, I can tell you this, Mr. Popovic: Since
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my son was a small child, I have been showing him my slide shows. All my children grew up on this stuff, and they
were well aware of the hazards of both active and passive smoking. And my son, who has a doctorate in physics, is perfectly capable of handling his own problems, and if he had invited me in to do something, I would certainly have done it, but he didn't, and so I wouldn't presume to force myself upon him. He did ask me for some advice. I told him, you
know, what I was doing and what the facts of life were, and he decided to, ultimately, to simply move. Q. Mr. Repace, I would remind you, I raised the
question -- raised the question of possibility, at the preliminary hearing, that during your measurement, there is a possibility that somebody else was smoking around the house or in the house during those 30 days you were measuring or Mr. Schuman was measuring air quality in his unit? A. Q. A. Q. A. Q. That there was somebody smoking outside? Yeah? When Mr. Schuman's house was closed up? Yeah? That may have been possible. Or in the house or around the house?
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A.
But, again, you know, exposure is concentration
times time; so, what you would have is a workman who was out there for a few hours, maybe occasionally doing some work and smoking outside with all the Schuman's windows closed, and we are making a measurement for thirty-five days, which is over eight hundred and forty-three hours, and so if he's there smoking, you know, five or ten hours outside -Q. A. Mr. Repace --- the wind may or may not be blowing, so the
smoke goes toward the house. Q. That possibility became fact a couple of days
ago when Mr. Gervasi said he has a couple of workers in his crew who are sitting outside on Mr. Schuman's porch and smoking; so, let's suppose that they were working two weeks during those 30 days of your measurement, and smoking outside, and maybe the window was open because it was Autumn, dusty inside too; so, they opened the windows? A. No. I'll tell you why. Because my measurement,
I believe, was not contemporaneous with Mr. Schuman's work that he did on his property. His house was already That was in 2009,
renovated when I made my measurements.
and I believe his renovations were done, what, 2007, 2008; so, that would not have been possible. Q. 2009 is what Mr. Gervasi said the other day?
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A. Q.
I don't know when -- he certainly wasn't -Anyway, may I remind you what you said at the "If anybody were smoking more than 25 feet
preliminary:
away from his house, very likely wouldn't be detected inside; so, it would have to have been in fairly close proximity to his house in order to pick that up," end the quote. So 25 feet very likely wouldn't influence the results of measurements? A. If that's what I said at that preliminary
hearing, that's what I believed at that time. Q. A. Uh-huh. However, a scientist who makes measurements;
gets data that are contrary to his previous hypothesis; believes the data; so, I have now changed my position on that. Q. Thank you. I would like to remind you, again,
on your study for the University of Maryland, you explained that, to them, depends on the wind, and number of smokers, and distance and that sort of thing, but you said, according to the transcript, "I feel pretty confident in saying that at least 25 feet should be the rule for a single smoker." So, again, 25 feet? A. At least.
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Q. feet.
On two occasions, you mentioned twenty-five One occasion is Gervasi's workers. If they are
farther than twenty-five feet or whoever is smoking farther than 25 feet, won't influence your instruments for Maryland University. It's also at least 25 feet? A. Q. A. You have to understand that under -Is that right, Mr. Repace? No. You have to understand that the downwind
concentration is affected by wind speed. Q. A. Yeah, we understand. By atmospheric stability. When I'm under the
conditions that I made the measurement was in the daytime with very strong sun and very high winds. to low downwind concentrations. At the time when I spoke the 25 foot rule, I believed that on the basis of the only data that were available, that had actually, at that time, ever been published, and now there are papers in the literature which have measured it. Q. A. Okay. Okay. Okay. So we go on as data accumulates, and we This is science. Those will lead
change our reviews of things. Q.
At that time, you said twenty-five feet should Now, I understand that
be the rule for a single smoker.
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first might be twenty-five, might be 30 feet or whatever for a single smoker, is that right? A. Could be a larger distance. Obviously, it
depends on the situation. Q. A. Q. It could be. 44 feet. It's not enough. We will talk about that a I see that's 44 feet.
little bit later, but, anyway, should be the rule for a single smoker. How long are you involved in this crusade
against smoking from the early 80's? MR. SZYMKOWICZ: term "crusade." BY MR. POPOVIC: Q. A. Okay. In this campaign against smoking? It's Your Honor, I object to the
Well, I don't have a crusade or campaign.
my research interests, and I give policy advice also to legislators and decision makers, and my advice is based on the science that I do, and also on the science that other people have done, and I have been involved since the mid 1970's, yes. Q. A. Q. So it's more than 30 years, I should say? Yeah. Mr. Repace, have you ever seen a sign which
says, No Smoking Thirty Feet For One Smoker or For Two Smokers 45 feet, or something like that?
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There's a sign in front of the entrance of this You saw that. We mentioned that last time on the
preliminary; says 20 feet, but it doesn't say how many smokers, does it? A. No. MR. SZYMKOWICZ: relevance of that question. THE COURT: It's all right. Your Honor, I object to the
BY MR. POPOVIC: So, for example, yesterday, during the lunch
break, I saw some fifteen smokers after that line, after that 20 feet line; so, you didn't -- you didn't answer me. Have you ever seen such a sign which prescribes how many smokers from which distances? A. Q. No. No. There is a lot of funny signs like that I
around the world, Don't Even Think About Parking Here.
also -- You never heard about a sign which has numbers of smokers on it? A. No. It doesn't mean it doesn't exist. I
haven't heard of it. Q. Yeah. You said that smoke outside dissipates
very quickly? A. Q. After the smoking stops. I understand it depends on the wind speed, the
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velocity, of insolation, whatever, but you said it dissipates very quickly. What does it mean, for example,
smoke one cigarette; how long it takes to dissipate? A. Well, it's a little complicated to answer, but I Let's say you're smoking.
can do this. Q. A.
Average? You are smoking a cigarette, and you blow a Just talk about that.
puff, okay.
Forget about what comes off the burning end of the cigarette for a moment. separate issue. So let's say you blow it into a cubic meter of air, okay. And that packet, that air packet, that box -We'll deal with that as a
let's call it a box -- will move downwind at whatever wind speed there is. And so if the wind speed is, let's say
for the sake of argument, ten meters a second, in one second time, that packet of air will move ten meters or about thirty feet, a little over, actually about thirty-three feet, okay. And so just that one puff.
On the other hand, you have got -- while the cigarette is burning, you have got the sidestream smoke, and that will be blown downwind also, but it will be blown downwind continuously. Now, let's say you have your last puff of the cigarette inhalation; then you put it out. You blow the
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smoke, and so the smoke in that packet is going to go down wind. Whatever wind speed is, it's going to disperse
laterally and vertically depending upon the stability of the air. At nighttime, it will remain fairly tight. In
the daytime, it will be much wider spread. Q. What time we talking about? Question was, What time we are talking about, two minutes, ten minutes, two hours or what, average? A. Q. A. For that last packet. For one cigarette after the last puff? After the last puff. This is what I was
explaining. Q. A. Yeah? It will move downwind at whatever the wind speed
is, assuming there is a wind, okay. Can deal with that issue of no wind later. If it's, as I said, it's ten meters a second, it will take one second to go thirty-three feet, okay, but in two seconds, it will have gone sixty-six feet; so, by that time, it would be past Mr. Schuman's window. that's with the ten meter a second. Now, if you have one-meter-a-second wind, then in one second, it will go one meter, and so it would take that packet to go past Mr. Schuman's dining room window about forty-four seconds to go past it; so, and if it's a Okay. So
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lower wind speed than that, it would take a longer period of time, but the point is, at some time after the last cigarette is smoked and is put out, if there's a wind, it will be gone. Okay.
Now, final case is when there was little or no wind. All right. And in that case, what happens is the
smoke will spread out in all directions in which it's possible to spread out more horizontally than vertically because the gases are heavier than air, but it will spread; for example, if you are sitting there in your chair, spread out in horizontal directions, and it will spread out from the house as well, and so the concentration in that case will linger for as long as it takes the smoke to disperse by atmospheric diffusion by Brownian motion. Molecules simply bang into one another.
That probably takes a few minutes. Q. Few minutes. So if two cigarettes smoked
outside, that's about ten, fifteen minutes, and few minutes more to dissipate that smoke; so, it's 15 minutes; not more than that? A. Q. If that's all that are smoked, yes. Yeah. So is it possible for Mr. Schuman to
close his window for that 15 minutes and be completely safe? A. That's an issue that you'll have to take up with
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Mr. Schuman. Q. A. Q. A. windows. I'm asking you? Different people would. I'm asking you? If it were my house, I wouldn't want to close my I would find it an imposition also, if that's
what you are asking me. Q. Yes. Thank you. Question of the wind. A lot
depends on the wind direction, wind velocity and that sort of thing? A. Q. Correct. You said you used wind rose from Baltimore
Washington -A. Q. Correct. -- Airport. Do you know how far is Baltimore
Washington Airport from Greenbelt? A. Q. A. Q. I'm guessing it's probably 20 miles. Something like that? Something of that sort. You are certainly acquainted; you know what is
microclimate? A. Q. Yes. It could, in the distance of a couple of 100
yards even, not to say 20 miles, it could differ? A. The winds, in general, are macro scale. They
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are on a large scale.
Locally, they can be different,
and, particularly, in sheltered locations you tend to have lower wind velocities. here. I made a conservative assumption
I could have used much lower wind velocity and
calculated much higher concentration, but to be perfectly reasonable and fair, I used average wind speed from Baltimore Airport, which is about -- I don't know what I used, three -Q. Mr. Repace, is it possible that winds in
Greenbelt are different than you found on wind rose at Baltimore Washington Airport? A. It's certainly conceivable on a micro scale. On
a macro scale, over a long period of time, I think the, you know, that's a reasonable approach. I can tell from
experience; I worked nineteen years at the United States Environmental Protection Agency, and in addition, I studied outdoor air pollution since 1970; so, for nine years, even before that; so, I was very well versed in how to do these calculations. I had done them in the early
1970's with respect to incinerators in the Washington Area and trash incinerators, sewage slug incinerators. heavily involved in that issue. doing these calculations. I was
I became very skilled in
That is one of the reasons I
was able to change fields so readily; so, I'm very familiar with how to do the calculations. I'm familiar
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with how the Environmental Protection Agency does its calculations in very similar cases. What they do, they
use the wind rose because that's the available data. To actually come and make a micro scale measurement, there are wind velocity meters you can buy for three to $4,000.00. They collect a huge amount of It's very labor intensive.
data in ten second readings.
To be perfectly fair, I would have to take measurements all summer and find out; calculate probability; so, you have to go with the data that is available. Q. Yes. So you didn't do any measurements of the
wind in the Greenbelt Area? A. Q. No. I think what --
Did you inquire around Greenbelt; you know, if
you asked all inhabitants who are living there for the case, what they will answer -- what they will answer about the wind? That the wind blows from the lake, and that's That's known fact; blows from
on this side of Greenbelt.
the lake; that means blows from Mr. Schuman's house, off Mr. Schuman's house; actually toward my house? A. Well, that raises another issue. If you have
got -- and I didn't do this calculation, but if you do a wind coming from the west, which is in your service side yard -Q. Yeah?
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A.
-- what you are going to get is wind that blows
over the roof, and as the wind blows over the roof, you are going to get a condition as aerodynamic downwash, pocket of turbulence, that can trap the pollutants in there. Q. It blows from the lake. It's not over the roof.
It's between two rows and that common middle area? A. The wind speed will increase as you go up in
altitude; so, it doesn't just blow on the ground level. It blows up in the air, and the higher up you go, the more wind, but you do get this turbulent effect. You'll have
what we call eddie currents on the back side of the building; so, that will tend to trap pollutants there. That's a complicated issue and hard to calculate. that it happens, and it's an issue. We know
That's why we have
chimneys that are supposed to be, by law, two-and-a-half times the building height, and unfortunately, is usually broken. Q. Now, just for the last question, let's suppose
that somebody installs a big fan strong fan in the garden which blows the wind opposite of Mr. Schuman's unit. Could that solve the problem? A. If Mr. Schuman installed a giant fan and blew it
at you while you were smoking. Q. I install fan. Well, you know, I spend a lot of
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money because of Mr. Schuman's problem with smoking. Yeah. A. Q. I would have to say -We have for years, more than ten years kept HEPA
filter and that sort of thing working twenty-four hours seven days a week. electricity. We spend a lot of money on
My wife was going around buying all sorts of
candles against smoking odor and that sort of thing. A. Q. Candles won't work. We hoped all those things might help, and
obviously, something worked during those 13 years; so, I'm not saying that I wouldn't invest in a big fan which will work when I am or whoever is smoking in the garden, which will blow the smoke off Mr. Schuman's house. Might be the solution? A. What you have proposed is a complicated issue.
I think if you had an extremely large fan and blew the smoke -Q. A. Q. Not complicated at tall? Blowing into your neighbor on the other side. Neighbor on the other side said yesterday or the
day before yesterday that their guests were smoking blowing the smoke to the other direction; so, she won't say anything about it. Also, their neighbors, first door
neighbors on the other side are smoking in their garden,
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or guests are smoking; so, it's not a question of Dory Ipolito. A. It's a question of Schuman. I suspect she might disagree with that, but
that's not at issue here. You know, my professional judgment is that it might help, but I think it would be very hard to do, and particularly, if the wind were blowing from Unit T (phonetic) toward Unit Q. You would have to mount a very
large wind, counterwind to that, and, you know, I don't know what the wind velocity might be from a very large fan. It could also be very noisy; then, you you create
another problem for both yourself, and Mr. Schuman and the other neighbors; so, it's a complicated issue. thought. Speculatively, I'm dubious about it. MR. POPOVIC: I have friends who are fighting That's a good idea. It's a
mosquitoes with large fans.
Anyway, thank you, Mr. Repace. THE WITNESS: THE COURT: Redirect? MR. SZYMKOWICZ: THE COURT: Got two questions written down. Yes. How long you anticipate your
Go ahead. REDIRECT EXAMINATION
BY MR. SZYMKOWICZ: Q. What are the peak level estimates when you
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tested outdoor air at Mr. Schuman's apartment? A. My recollection, they were ten and possibly some
peak levels around twelve -Q. A. What does that mean? -- nanograms per cubic meter. It simply means that they were five to six times higher than the average. Q. A. Q. A. Q. A. Than the average what? Median level of pollution. Does that make it better or worse? Makes it worse. Why is that? Because the levels were higher. Tobacco smoke
typically travels in micro plumes.
That's why you get --
at one ten second interval, you can get a number as high as ten or fifty maybe, and another, you could get zero, because most micro plumes will go in different directions, and they may or may not impact a monitor; so, if you had a whole battery of monitors, one might pick it up, and the other might read zero; so, the point is, this experiment was simply designed to detect whether smoke was coming in in an objective manner, which it did. Q. My second question is: How far from the common
area pathway, which would be at the bottom of the picture, to the building, do you know?
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A.
Yes.
According to the diagram which Mr. Schuman
gave me, and I think it's in my outdoor report, the first one in August -Q. A. Can you review, so you're not speculating? I know what the number is. It's about 42 feet,
but I can check it. I'm sorry; this is the wrong one. December. That's July, June. Yes. This is
It's over here.
I'll call your attention to figure six on
page nine of Exhibit -- Plaintiff's Exhibit 6. Q. A. Which report was that? This is the December 10th, 2010 report, and if
you look at the measurements, and this is from Alan from Greenbelt Homes. These are not my measurements. It looks
like the garden side yard ranges from a little over forty-one to about 42 feet in distance perpendicular along this walk from the face of the building to the common area; so, the common area would be beyond, basically beyond about 42 feet. In fact, in this picture, you could There's a
just sort of vaguely see the oval area. sidewalk out there.
Now, was there a question that I missed? Q. Well, the question that I asked: How far was it
it, 42 feet? A. Yeah.
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Q.
The Court is going to be faced with an issue of
whether to issue an injunction on outdoor smoking, and at what distance do you believe that Mr. Popovic could smoke in the common area outside at a distance that wouldn't affect Mr. Schuman if he were inside his house? A. I think if the Town of Greenbelt or Greenbelt
Homes permits smoking in common areas, that anybody could smoke out on that sidewalk at a distance of 42 feet or greater, and I don't know that it would be an issue anymore between Mr. Popovic and Mr. Schuman. It could
still be an issue, but then it would rise to some other level. Maybe, it would rise to Greenbelt Homes or the
Town of Greenbelt. Q. A. Q. So the Court certainly -So -Assuming that the Court has jurisdiction over
Mr. Popovic in his house, in his yard, and in that common area, which presumably GHI owns, at what distance do you believe Mr. Popovic would no longer affect Mr. Schuman in the use of his house or yard? A. I think if Mr. Popovic went in that common area
on the other, on the far side of that sidewalk, somewhere in that area where it would be comfortable and convenient for him, that would be a good place for him to smoke. That would -- if I were judging this, which I'm not; that
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would be, you know, a reasonable compromise. MR. SZYMKOWICZ: MR. GOECKE: I have no no further questions.
Your Honor, I think this would be a
very good conversation at the next Greenbelt Homes meeting. I have no more questions. Thank you.
RECROSS-EXAMINATION BY MR. POPOVIC: Q. Mr. Repace, according to your diagram, we see There are still some
that 44 feet is still dangerous. carcinogenic particles, whatever? A. Q. A. Q. Yes.
I think the wind coming from the east.
Is it 44 feet, is that right? Yes, that is correct. Yes, that is right Does it
Common area is 42 feet distance.
mean -- who anyone goes by can sue myself or Greenbelt Homes because we are endangering his life because he's going nearer than 44 feet? A. I think you're asking me for a legal opinion, That's something you
whether they can sue you or not. need to consult an attorney. Question is:
Is it possible for smoke, at the
distance of 42 feet, to reach your house or Mr. Schuman's house? Yes, it's possible.
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That wasn't the question I was asked. asked what a reasonable compromise might be.
I was
If it were
up to me, if I were the smoker, if I were in your position, I would go out as far as I could that's convenient somewhere in that common oval area under a tree where it's comfortable. I'd put up a folding chair, and I
would smoke, if that's what I wanted to do. You know, it's really going to be up to Your Honor to make that decision. MR. POPOVIC: Your Honor, if it is up to me, I
would go to another continent just to avoid this sort of harassment, you know, but unfortunately, I can't move at the moment because of my wife's health; otherwise, would go. THE WITNESS: MR. POPOVIC: THE COURT: I'm sympathetic to that. Thank you. Let me just -- When this test was
done, was the only window open the one in the dining room? THE WITNESS: No, both the living room and
dining room windows were open; upstairs bedroom window was open. THE COURT: Is there anyway to measure whether
the smoke, the concentration tested in the living room, is there -- anyone know whether that smoke came from -- which window it came in?
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THE WITNESS:
Yes, in fact, I showed that right
THE COURT:
Yeah, but is it possible -- isn't it
possible that the smoke came in the dining room window, and then made its way into the living room? THE WITNESS: That's certainly possible that it On the other hand, I
would have contributed to it, yes.
could smell it from the living room window as well; so, yes, you are right. bedroom window. It certainly was in the upstairs
I think the point is that every window
that was opened was a potential aperture for smoke to come in, and it did. THE COURT: You mentioned this fan idea.
You'll assume, for the moment, the only open window is the dining room window. If there is an exhaust
window fan placed in that window for that period of time, keep the smoke out rather than a big fan out in the garden? THE WITNESS: Well, yes, that might, but that
begs the question of whether Mr. Schuman can enjoy his patio. THE COURT: THE WITNESS: THE COURT: I understand that. His backyard outside. I understand that, but a fan blowing
out would keep the smoke from coming in?
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THE WITNESS:
Well, the house fan have to be
pulled in from the other side. THE COURT: Yeah. Finally, the only testing you
did was Mr. Schuman's residence; none of the other neighboring residences? THE WITNESS: THE COURT: MR. GOECKE: THE COURT: That's correct. Any questions based on mine? No, Your Honor. We will take, maybe, a ten minute
Thank you, sir. THE WITNESS: (Recess.) (Witness sworn). THE DEPUTY CLERK: Please state your first and You are welcome.
last name, and spelling them for the record. THE WITNESS: M-U-N-Z-E-R. THE DEPUTY CLERK: Thank you. Alfred Munzer, A-L-F-R-E-D, then
ALFRED MUNZER, a witness produced on call of the Plaintiff, having first been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. SZYMKOWICZ: Dr. Munzer, tell me about your personal
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background, where you were born; how you got to become a doctor? A. I was born in the Netherlands 1941, and I came I attended Yo Sheba
in the United States in 1958.
University High School, then went to Brooklyn College, and went to the Medical School at State University of New York, down state, Medical Center. Q. Since you graduated from medical school, what
have been your jobs? A. Immediately following Medical School, I was an
intern at the State University, Kings County Medical Center; then I did my first year of residency in internal medicine there; went onto the University of Rochester School of Medicine for my second year of residency in internal medicine; then came to Johns Hopkins for a fellowship in pulmonary medicine; then entered the Air Force for two years of military obligation at Andrews Air Force Base. That's how I came to the Washington Area.
And then following that, I entered private practice in pulmonary medicine. Q. A. Q. Where was that? I practiced at Washington Adventist Hospital. What is your current title at Washington
Adventist Hospital? A. I'm Director of Pulmonary Medicine.
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Q. A.
How long have you served in that capacity? I have served in that capacity probably for the Prior to that, I was an Associate
past ten years. Director. Q. Hospital? A. Q.
When did you start working at Adventist
I started working there in 1974. In the meantime, while you were employed at
Adventist Hospital, have you served in any leadership positions in any national or international organizations? A. I was President of the American Lung
Association. Q. A. Okay. I served on various committees of the American
Thoracic Society as well. Q. So you served as the President of the National
American Lung Association? A. I served on both as President, both of the
American Lung Associations, of District of Columbia and then as President of the National Organization. Q. A. Q. bodies? A. Many times. When was that? Approximately, 1993, '94, I believe. Have you ever testified before any government
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Q. A. Q. before? A.
Approximately how many times? Dozens of times. What government bodies have you testified
I have testified before both houses of Congress,
various committees on a variety of issues, and I have also testified before some administrative and scientific organizations, like the National Academy of Sciences. Q. General? A. Q. In general, on topics dealing with lung health. On average, over your career, how many patients What were the substance of your testimonies? In
did you normally treat in a given week? A. Probably, when I was practicing full-time, about
fifty, sixty. Q. And what would be your typical patient's
complaints? A. Variety of complaints originating in the cough, shortness of breath, wheezing.
respiratory tract: Q. A. Q.
Have you ever treated any victims of smoking? Many. What are some of the common ailments of the
smokers that you have treated? A. I have treated -MR. FISHER: Your Honor, I just object. We are
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getting into expert opinions. MR. SZYMKOWICZ: THE WITNESS: Still qualifications.
I have treated -- I treat patients
with chronic bronchitis, asthma, emphysema all related to smoking as well as many patients, unfortunately, with lung cancer, and certainly, I have also seen a lot of patients with heart problems. Q. Do some of your patients happen to be nonsmokers
as opposed to smokers? A. Q. Yes. Do you know if some of these nonsmokers have
family members that are smokers? A. Q. Yes. Do you have any education, training or
experience in the identification of the health effects of smoking? A. Well, this is certainly part of the training as
a pulmonologist. Q. Do you have any education, training or
experience in how to treat smoking-related illnesses or diseases? A. Q. Absolutely. Do you have any education, training or
experience in the identification of the health effects of secondhand smoke?
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A. Q.
Yes. Do you have any education, training or
experience in the treatment of third-parties who are affected by secondhand smoke? A. Q. Yes. Have you ever testified as an expert in a Court
of law or judicial proceeding, such as a legal hearing, trial deposition or arbitration? A. Q. A. Q. Yes. And approximately how many times? Probably no more than a dozen. And in what subject areas have you previously
testified as an expert? A. Some of the cases have to do with the health
effects of secondhand smoke. Q. Has any Court ever found you were not an expert
in any of the areas that you were tendered as an expert? A. Q. No. Doctor, I'm showing you what has been marked as
State's Exhibit No. 8 for identification. (Off the record discussion ensued.) BY MR. SZYMKOWICZ: Q. A. Q. Have you ever seen this document before? Yes, I have. What is it?
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A. Q. A.
That's my curriculum vitae. Do you have any additions or changes to that? Just a very minor one. I recently contributed
to a book called, Breathing in America, published by the American Thoracic Society. MR. SZYMKOWICZ: Your Honor, I move this
document into evidence as Exhibit No. 8. THE COURT: MR. GOECKE: THE COURT: Any objection to No. 8? No objection, Your Honor. It will be admitted.
(Plaintiff's Exhibit No. 8, previously marked for identification, was admitted into evidence.) MR. SZYMKOWICZ: I move that the Court certify
Dr. Munzer as an expert witness in the field of health effects of secondhand smoke; with regard to the health of those who breathe in secondhand smoke, and the treatment of those people who are affected by secondhand smoke. THE COURT: MR. GOECKE: Care to voir dire? No, Your Honor. No objection. We
will accept Dr. Munzer as an expert. THE COURT: Okay.
BY MR. SZYMKOWICZ: Q. The Court has already taken judicial notice of Would you agree that they
the Surgeon General's Reports.
are the gold standard for the discussions that we are
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having today? A. Q. Yes. Are you aware of any studies that contradict the
Surgeon General's Reports on secondhand smoke? A. The Surgeon Reports are very comprehensive
reports on the available literature dealing with secondhand smoke and a variety of other topics related to the health effects of smoking. Q. Do you agree with the findings of the Surgeon
General's Reports of 1986, 2006 and 2010 regarding secondhand smoke? MR. GOECKE: findings here? Objection. Can we define specific
He talking about the entire seven hundred
pages of those documents? MR. SZYMKOWICZ: every single thing. MR. GOECKE: in science. THE COURT: THE WITNESS: Anything that you disagree with? Not that I know of. It's like asking him if he belives I'm trying not to go through
BY MR. SZYMKOWICZ: Q. You have read all three of these publications,
haven't you? A. cover. I have to admit, I did not read them cover to
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Q. A.
Have you read the summaries? I have definitely read the summaries, and I have
looked at many of the chapters. Q. In general, do you believe that secondhand smoke
poses any risk to the health of those who breathe in secondhand smoke? A. Q. Yes. What risks does secondhand smoke pose to those
who breathe in the secondhand smoke? MR. GOECKE: Your Honor, I object. Again,
cumulative evidence; not disputed in this case; going over this time and time again. I think the more we do this,
becomes more prejudicial to my client. THE COURT: Give him about three questions.
BY MR. SZYMKOWICZ: Q. Okay. You were sitting here through the
testimony in this case, haven't you, the whole time? A. Q. Yes. One minute. Can you tell me how secondhand
smoke damages the body? A. Well, secondhand smoke is composed of many Some
different chemicals, some of which are highly toxic.
of them cause cancer, and some of them are just irritants, for example, to the respiratory tract; so, there are different levels of hazardous effect. The immediate
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effect that most people sense would be a bad smell, annoyance in other words; then people complain also of burning, eyes burning, nose, runny nose, and then this goes on to people who develop -- who also complain of nausea, headache, a whole constellation of symptoms. In addition to those immediate or short term effects, in addition to that, there are long term effects of the secondhand smoke, and they are effects on the respiratory system and on the circulatory system. have been well documented. Those
They include lung cancer.
Increased incidence of heart attacks also in people who are exposed to secondhand smoke, and the evidence for that comes from a variety of sources, epidemiologic studies, which we have talked about a lot of it also; studies of the biology, really, of these mechanisms of the action of cigarette smoke on various organs. Q. To your knowledge, Mr. Schuman has not suffered
a heart attack as a result of secondhand smoke, has he? A. Q. I have not heard anything to that effect. To your knowledge, Mr. Schuman does not have
cancer of any kind from what you have seen or heard? A. I don't know. MR. FISHER: Foundation. THE COURT: Have you ever examined Mr. Schuman Objection, Your Honor.
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personally? THE WITNESS: I did not examine Mr. Schuman.
BY MR. SZYMKOWICZ: Q. So in order to short circuit and limit this
discussion, we are only here on the effects of secondhand smoke that you have let Mr. Schuman testify to today, is that correct? A. Q. Yes. Can you tell me what you believe Mr. Schuman's
complaints about Mr. Popovic's smoking to be? A. The complaints that I have heard, that he has
had sneezing; he has had headaches; he has had nausea; he has secondhand headaches, and he has difficulty sleeping. Q. And do you believe that these are objective or
subjective complaints with regard to individuals that you have either examined or in the literature supports a finding of that when they are exposed to secondhand smoke? MR. GOECKE: question. Your Honor, object to this
He already testified he cannot examine him;
therefore, there can't be any objective acknowledgement by this witness. THE COURT: What he's saying, based on what he He has been in the
has heard him testify, he can do that. Courtroom to hear the testimony.
Are these the symptoms he described; would they
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be subjective or objective symptoms, and it's just a possibility, I'm sure. THE WITNESS: Go ahead. These are the kind of symptoms
that we would typically hear from a person exposed to secondhand smoke. THE COURT: The question said: Are these
objective or subjective? THE WITNESS: The problem I have is that the
terms mean something different to a physician than to an attorney, and to a physician, subjective means any symptom that is reported by the patient. Objective means a
finding that is based on the physical exam or laboratory exam; so, from a medical standpoint, I would call these subjective, but they are real in the sense that these are the kind of symptoms that are very typically reported. Q. Do you know if every human body produces the
same complaints such as Mr. Schuman made when they are exposed to secondhand smoke? A. Q. No. Do you know if these are the kind of complaints
that are generally made by people when exposed to secondhand smoke? A. These are very frequent complaints, and it's
certainly a constellation that has been associated with exposure to secondhand smoke.
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Q.
Can you tell me what physically happens to the
human body when they breathe in secondhand smoke for the first time on a given day? A. Secondhand smoke, like any other smoke, like It is then
direct smoking, is rapidly taken up; inhaled.
taken up in the lungs and rapidly, as some of the substances are transferred at the alveolar level. Q. A. Spell that? Alveolar, A-L-V-E-O-L-A-R, level to the
bloodstream, and then to distant parts of the body, and that's how we explain some of the more chronic effects of cigarette smoking; for example, the abduction of lung cancer in organs that are as distant as the bladder. Q. What happens to the human body when the smoke is Does the body produce any
inhaled into the lungs? reactions? A.
Well, it depends on the individual, but it,
generally, it defends itself, if you will, against the offense, against the -- that's the manifestation that we call sneezing, the red eyes, the burning of the eyes. These are all manifestations that the body is being attacked by something it doesn't like. Q. And are there other examples in day-to-day human
life that produce these kind of reactions? A. Some people may have allergies to specific
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substances, for example, and they may have symptoms that are very similar. Q. So this would be similar to, for example, hay
fever that some people may have in this area in the springtime, the same kind of reactions? A. The immediate reaction may be very similar, but When a
what happens in distant organs is very different.
person, you know, has hay fever, it does not lead to the absorption of carcinogens, for example. Q. Why does the human body sneeze when exposed to
an allergen such as secondhand smoke or flower pollen? A. Q. I didn't hear you. Why does the human body sneeze when exposed to
an allergen such as secondhand smoke or pollen? A. Q. A. It's basically an immune reaction. What is the body trying to do? The body is trying to give a message that this
is a foreign substance. Q. And then what is the actual act of sneezing
trying to accomplish? A. Well, the seizing may get rid of the substance.
That's one way of ridding the body, basically, of the substance. Q. These are all what I think we can all agree are
the short term effects of secondhand smoke, would you
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agree? A. Q. That's correct. What risks, outside of what you have discussed
previously, do individuals that are nonsmokers have when exposed to secondhand smoke on a long term? MR. GOECKE: Again, Your Honor, I object. I
think we have been over this. THE COURT: I'll allow it.
BY MR. SZYMKOWICZ: Q. Any other? A. I think, primarily, lung cancer, heart disease, These are some of the more chronic You have already testified to some of these.
cardiac symptoms. effects. Q. Schuman? A. Q. A. Yes.
Did there come a time when you met David
And where did you meet him for the first time? I met him in my office probably about three,
four months ago. Q. And you did not perform an examination, a
medical examination on him as if he were a patient of yours, did you? A. Q. No. You examined some of his medical -- you examined
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his medical records, correct? A. I asked for his medical records, and I did look
through them. Q. I'm showing you what has been marked as Exhibits These medical records were shown to
10 through 16.
Mr. Schuman during his -- during Mr. Goecke's Cross-Examination. before? A. Q. I believe I have. Did you discuss Mr. Schuman's beliefs and Have you ever seen these documents
complaints with him at your first meeting? A. Yes. Q. Based on your discussion with Mr. Schuman and Did he discuss what he was complaining about?
your review of his medical records, I believe a few pages of which are in front of you as Exhibits No. 10 through 16, did you form any opinions about Mr. Schuman's injuries as a result of Mr. Popovic's smoking? A. It was my opinion that Mr. Schuman had been
harmed by exposure to secondhand smoke. Q. You have been in this trial the entire time, Did any
correct, and you have listened to the testimony?
of the testimony that you hear further support your findings that you preliminarily made a few months ago? A. Yes.
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Q.
What were your findings based on the testimony
of Mr. Schuman? A. Well, hearing him describe his symptoms in this
greater detail when he was on the stand, I think reenforced my impression, my conclusion that he had suffered effects from inhalation of secondhand smoke. Q. Did hearing Dory Ipolito testify further support
your belief, and if so, how? A. I certainly believe that in her case, also, it She had been exposed to secondhand smoke, and it had
caused exacerbations of her asthma. Q. What do you believe Exhibits 10 through 16 show
with regard to Mr. Schuman's claims, if anything? MR. FISHER: Objection, Your Honor, the They
exhibits that he's examining I believe are hearsay.
are medical reports by other physicians; that while he may have reviewed them, any conclusions that he's going to draw from them relate to a medical exam that he did not perform. Further, Your Honor, I would note for the record e-mails to Counsel about this last week, that these documents were not produced in discovery. Despite us
filing and asking for all medical records, these documents were not produced in discovery, and we object to their admissibility. We object to this witness relying on those
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documents to form any opinions since we were not provided those documents for review and for examination. MR. SZYMKOWICZ: Your Honor, that's correct.
What happened, Mr. Schuman tendered these directly to Dr. Munzer, and I didn't send them to the other side, as I should have; however, and we had sent Mr. Goecke and Mr. Fisher an e-mail; said we weren't going to introduce them. We didn't even mention them in our Direct
Examination of Mr. Schuman; however, they started questioning Mr. Schuman about them. MR. FISHER: Honor. For impeachment purposes only, Your
I made that very clear. MR. GOECKE: In Mr. Szymkowicz' e-mail to me, he
said, "We reserve the right to use these to refresh the recollection of Dr. Munzer and Mr. Schuman, if he should not remember," so we thought it appropriate for impeachment only. We had an agreement these would not
come in as evidence. I can bring that e-mail. MR. SZYMKOWICZ: That is true, so but because
they introduced it, I think that that allows Dr. Munzer to testify. I really didn't intend to, you know, introduce
them but -THE COURT: He has already testified that he
formed his opinion based on discussions with Mr. Schuman
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and a review of those documents.
He already stated review That
of those documents form the basis of his testimony. testimony is in.
Some of the material in those documents
has already been testified to in impeachment questions and they were specifically used for. If they were requested in discovery and not produced, they will not be admitted. MR. SZYMKOWICZ: MR. FISHER: That's fine.
Thank you, Your Honor.
BY MR. SZYMKOWICZ: Q. Those records that you have in front of you,
Exhibits 10 through 16, did they -- was it your discussions with Mr. Schuman and listening to him testify or was it your review of medical records that primarily led to your conclusions here? A. It was primarily my discussion with him and
certainly what I heard while I was here in the Courtroom. Q. Okay. So these medical records, in your belief,
are a small part of your opinions forming the basis for your opinions in this matter? A. Q. Yes. And these are seven pages, approximately, of
many, many pages of records that Mr. Schuman provided via medical records? A. Yes, he e-mailed me a huge file, and frankly,
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was much too much, but I just had some general impressions in those files. Q. Why is it an examination by you of Mr. Schuman
was not important to establishing a basis for your findings today? A. Q. I wasn't asked to perform an examination. Do you think an examination of Mr. Schuman would
be helpful to allow you to have the basis for your findings? A. Q. I can't say. I really --
Would you agree that Mr. Schuman's complaints
are subclinical? A. No, I think the things that he is complaining
about are actual complaints and are actual manifestations of exposure to secondhand smoke. Now, these may be
transient effects; may not be terribly severe, but they have evidence of exposure; of some harm to him as a result of exposure to secondhand smoke. In addition to that, certainly it is very possible that the exposure to secondhand smoke may eventually lead to a lung cancer or some other form of cancer. We don't know what is happening in his body as a
result of exposure to secondhand smoke. Q. You wouldn't expect to find, in Mr. Schuman's
medical records, any indication by his treating physicians
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about exposure to secondhand smoke or damage from secondhand smoke, would you, in Mr. Schuman's case? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. It's all right. It depends on the physician. Some
physicians are very aware of the dangers of secondhand smoke and will put those into the medical records. Others, unfortunately, do not, you know, make a record of that, but it is now generally recommended that physicians do keep track of exposure to secondhand smoke as a risk factor for disease. Q. In your review, in your cursory review of
Mr. Schuman's large volume of medical records and your specific review of the documents that are here, there's no mention of secondhand smoke, is there, except on the final Exhibit No. 16? A. I believe that's correct, at least from the
pages that I have looked at. Q. And in Exhibit No. 16, it just kind of mentions
secondhand smoke, is that correct? A. Q. Yes. I'm showing you what has -- this is the Court's
order on the preliminary injunction from last September. I direct your attention to the following statement on page seven, quote: "While recognizing the dangers of
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secondhand smoke and the elevated risk to ones health, the Court has not received evidence in this case demonstrating actual damage to the Plaintiff other than the offenseive odor. There is no medical evidence demonstrating an
unfavorable health condition that has actually been suffered by Mr. Schuman." Do you believe in -- and, of course, you were not in the preliminary injunction hearing, were you? A. Q. I was not. Do you believe that Mr. Schuman has presented
evidence in this hearing, in August of 2011, demonstrating actual damage in addition to the offensive odor? MR. FISHER: THE COURT: Objection, Your Honor. Sustained.
BY MR. SZYMKOWICZ: Q. Do you believe that Mr. Schuman has suffered an
unfavorable health condition as a result of exposure to secondhand smoke? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. Overruled. I believe he has. I think the
symptoms that he described are a harmful effect of exposure to secondhand smoke. Certainly, his complaint of
burning of the eyes, his complaint of tightness in his chest, wheezing, coughing, headache, all of those are
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adverse effects and may be transient; might not be terribly important in the long run, but they are definite adverse effects indicating that he is being exposed to secondhand smoke, and secondhand smoke, furthermore, is getting into his body and may place him at risk of developing some further problems later on. Q. Is that a serious risk in your opinion? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. Go ahead. I certainly -- if I were his
treating physician, I would certainly advise him to stay away from secondhand smoke. BY MR. SZYMKOWICZ: Q. A. about. Q. Hearing Mr. Schuman's testimony in this case Why is that? I believe it's the kind of risk I would warn him
today, do you believe that he has suffered a medical injury as a result of his exposure to the secondhand smoke? MR. FISHER: THE COURT: THE WITNESS: the definition. Objection, Your Honor. Go ahead. I guess it depends a little bit on
Certainly, in the sense that the symptoms
that he has developed, the fact that they are recurrent
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symptoms, recurrent difficulty sleeping, the recurrent headaches, all of those are things, I think, taken together do show that he has sustained an injury. BY MR. SZYMKOWICZ: Q. Wouldn't even one instance where he has that
congestion, that eye irritation, wouldn't that in your opinion be a medical injury as well? MR. FISHER: THE COURT: medical injury? Objection, Your Honor. Well, would those things be a
You can answer that. They would be a medical event. I
THE WITNESS:
think they might; depends a little bit on the definition of the word "injury," but I think a single event would be a single injury, albeit probably minor. BY MR. SZYMKOWICZ: Q. Okay. And do your opinions, you believe, would
come with a reasonable degree of medical certainty which would be shared by a majority of medical care providers practicing in your specialty in this area? MR. FISHER: THE COURT: MR. FISHER: Objection, Your Honor. I'll allow it. Well, Your Honor, there are several Let me start, first of all --
bases for the objection. THE COURT: Association --
The President of the National
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MR. FISHER:
I'm with you.
I certainly believe
he can testify with a lot of opinions, but the form of Mr. Szymkowicz' question was pretty broad and not specific. If he's asking him, basically, to say that his
whole testimony today is generally accepted among the scientific and medical community, I think that needs to be specified. question. question. THE COURT: the weight. Again, I think it's going to go to Mr. Szymkowicz may be able to rephrase the I think it's pretty broad, how he asked that
Given the background that was established
during the initial voir dire, I think he can testify what he thinks other medical practitioners might opine in this situation. THE WITNESS: I think they would. I hope they
It is really very difficult for me to make an Many physicians still have a lot to learn
assessment.
about the dangers of secondhand smoke, but certainly, it's a view that would be shared among pulmonologists and people who treat patients with exposure to secondhand smoke. (Off the record discussion ensued.) BY MR. SZYMKOWICZ: Is there anything -- sorry about that. Is there anything Mr. Schuman can do to mitigate
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the damage that he is suffering -MR. FISHER: Objection, Your Honor.
BY MR. SZYMKOWICZ: Q. -- from secondhand smoke? THE COURT: Be a little more specific. Yeah, he
can move to an island in the middle of the Chesapeake; travel. BY MR. SZYMKOWICZ: Q. Is there anything Mr. Schuman can do while
living in his house to mitigate the damage that he believes that he's suffering from secondhand smoke? MR. FISHER: damage. THE COURT: THE WITNESS: secondhand smoke. BY MR. SZYMKOWICZ: Q. And as long as he's in this environment, do you Medically, he can do? He can avoid exposure to Objection, Your Honor, in terms of
believe that he would continue to suffer these damages? MR. FISHER: THE COURT: Objection, Your Honor. Sustained.
BY MR. SZYMKOWICZ: Q. Assuming that Mr. Schuman -- strike that --
assuming that Mr. Popovic begins smoking in his house again at the conclusion of this trial, would that expose
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Mr. Schuman to damage in your opinion? MR. FISHER: THE COURT: Objection, Your Honor. Sustained.
BY MR. SZYMKOWICZ: Q. What would be the effect of the Popovics smoking
on Mr. Schuman if they started smoking in their house again? MR. FISHER: THE COURT: Objection, Your Honor. Sustained. I have no further questions.
MR. SZYMKOWICZ: THE COURT: MR. FISHER:
Cross. Thank you, Your Honor.
Good afternoon, Dr. Munzer. THE WITNESS: Good afternoon.
CROSS-EXAMINATION BY MR. FISHER: Q. Dr. Munzer, would you agree that it would be
your advice to advise all individuals to stay away from secondhand smoke? A. Q. Yes. As Mr. Goecke mentioned earlier today, as we
were walking into the courthouse, an individual walking in front of us smoking a cigarette; clearly smelled that smoke. It would be your advice, to me as an individual,
as it is to Mr. Schuman, to avoid exposure to secondhand
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smoke, correct? A. Q. Yes. Do you believe that exposure to secondhand
smoke, in all cases, results in somebody suffering some harm? A. Q. No. Do you believe that exposure to secondhand
smoke, in all instances, results in somebody suffering some injury? A. Q. No. Mr. Schuman has no record or evidence of heart
disease, correct? A. I don't know -- well, in reviewing the medical
records, I did see that he has a somewhat elevated cholesterol; so, it does put, somewhat, increased risk of heart disease. Q. A. Q. Increased risk of heart disease? That's correct. You can't say, with a reasonable degree of
medical certainty, that his increased cholesterol level or risk to heart disease results from secondhand smoke from Mr. Popovic? A. Q. No. As a matter of fact, you didn't examine
Mr. Schuman at all, did you.
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A. Q.
That's correct. And I was very surprised, Dr. Munzer, hearing
your testimony a few minutes ago, that you are telling us that you can sit in the Courtroom, and listen to an individual describe their description of their symptoms and say, with a reasonable degree of medical certainty, that those symptoms were, in fact, as a result only of the exposure to secondhand smoke from the next-door neighbor. Is that what you are saying? A. I said a constellation of symptoms that is
frequently associated with exposure to secondhand smoke and has been well described. Certainly, you know, the way
he described the association between the smoking, between the exposure and the development of the symptoms convinced me that there was a causal relationship. Q. Okay. So it's your belief -- and I appreicate What you are saying is you believe
your clarification.
that sitting here listening to Mr. Schuman's descriptions of his symptoms, in your experience, those same symptoms may be attributable to, a result of, his exposure to secondhand smoke, correct? A. That's correct, and you know, when we examine a
patient and we perform a history, much of the diagnosis really comes from the history and much less from the physical exam and even the laboratory exam. A good
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history is very important. Q. In those histories that you are talking about,
that's in a situation where you were treating somebody for an actual disease, correct? A. Q. A. Q. That's correct. You weren't treating Mr. Schuman for a disease? No. In fact, none of the documents that you reviewed
revealed that he has, in fact, suffered from heart disease, correct? A. Q. A. Q. A. Q. That's correct. Hasn't been diagnosed with heart disease? That's correct. Has not been diagnosed with lung cancer? That's correct. Has not been diagnosed with chronic ailments
that you would associate with long-term association to secondhand smoke, is that correct? A. Well, he has. The medical record does reveal
the episodes of sinusitis, of sinus infections, and certainly they may not be caused directly or only by secondhand smoke, but it certainly, again, is the kind of condition that could be aggravated by exposure to secondhand smoke. Certainly, any patient with recurrent
sinus infections, I would recommend avoid exposure to
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noxious agents, specially things like secondhand smoke. Q. As a medical professional, in your opinion, what
determines whether a condition such as sinusitis is considered a chronic condition? How often and how many
times would it have to recur, in your opinion, to determine that it's a chronic condition? A. I think sinusitis, if there are multiple
episodes, then probably would be considered chronic or the person would be susceptible. difficult to define. Actually, you know in the case of, for example, of chronic bronchitis, there's a very specific definition, and that's having a persistent cough for two months out of the year; then a person is presumed to have chronic bronchitis. I don't know the precise -- if there is a definite specific definition of chronic sinusitis, except perhaps getting sinus X-rays or CAT scan of the sinuses; these may be recurrent episodes of acute sinusitis. Q. And the episode with Mr. Schuman that you are The sinusitis, it's very
referring to, you said you reviewed a large stack of medical records, correct? A. I scanned through them. I did not certainly
read every single page. Q. How far back did those medical records go, do
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you recall? A. Q. A. Q. records? A. Shortly -- several months ago. Shortly after I I don't recall. Do they go back five years? I really honestly don't recall. How long ago did you review those medical
first met Mr. Schuman. Q. Okay. And in the medical records that you
reviewed, that you believed relate to the conditions that you have talked about here today, those were the exhibits that Mr. Szymkowicz showed you, correct; you have in front of you? A. Q. Yes. Okay. And in those records, where in those
records does it say that his treating physician diagnosed him with bronchitis that resulted from an exposure to secondhand smoke? A. Q. A. Q. He does not mention secondhand smoke. Okay. Except in that last report. How many -- on how many occasions did
Mr. Schuman go to a physician, based upon the records that you reviewed in front of you, as that relates to a condition that you believe could result from his exposure
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to secondhand smoke?
How many occasions?
I would be careful to actually look at those documents because I think one of those talks about poison ivy. A. Yes, I think it's -- I think it's two or three.
Yeah, three, I think. Q. A. Q. Three occasions? Three. Okay. And you believe that three occasions of
him going to the doctor's for symptoms is a chronic problem that he's suffering from exposure to secondhand smoke, is that right? A. I think it indicates that he is certainly
susceptible to certain conditions that are aggravated by secondhand smoke. Q. There's a difference between aggravated and
caused by, is there not? A. Q. Yes. Okay. So let's talk about causation in terms of Does secondhand smoke, alone -- excuse
the medical field. me.
Let me rephrase it. Can secondhand smoke exposure, alone, cause
bronchitis? A. Q. Yes. In the circumstances of Mr. Schuman's case, can
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you say, with a reasonable degree of medical certainty, that his exposure to secondhand smoke and the conditions that you have heard described in this Courtroom caused his bronchitis on those three occasions? A. Q. No. Can you say, with a reasonable degree of medical
certainty, that Mr. Schuman's exposure to secondhand smoke and the conditions that you have heard described in this Courtroom caused the condition of sinusitis that is noted in the medical records that you have reviewed? A. things. Sinusitis can be caused by many different Can be infection, but it is certainly the kind of
condition that may be aggravated or brought on by exposure to secondhand smoke. It's very difficult to determine
that specifically, but it's certainly the kind of condition that would lead me to advise a patient to stay away from secondhand smoke. for that. Q. again. Let me rephrase. Let me ask you the question The evidence is strong enough
I don't think you really answered the question. Can you say, with a reasonable degree of medical
certainty, based upon the testimony that you have heard from Mr. Schuman in this Courtroom today as well as the other testimony, that his exposure to secondhand smoke caused the condition of sinusitis that is in the medical
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records which he, in fact, did go for treatment to his treating physician? A. Q. It's possible. You are saying what you have heard, you believe
that sinusitis possibly was caused by exposure to secondhand smoke? A. In the absense of any other risk factors in a
person who is otherwise healthy, where the only real risk factor is exposure to secondhand smoke, if the exposure, you know, is severe enough, certainly this could be a cause, and I could say that. Q. Let me ask you this: You said if that was the
only risk factor, correct? A. Q. Correct. There are other risk factors that lead to the
development of sinusitis, is there not? A. Q. Yes. One of which could be extreme levels of tile
dust that get into your sinuses, correct? A. Q. sinusitis. sinusitis? A. Most often, the people that have allergies and I don't know about that. Okay. Tell me another condition that can create
What can cause; lead to the development of
the allergic reaction causes swelling of the tissues
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within the sinus' fluid; stays there, and organisms are allowed to spread basically; so, you end up with an infection. Q. If I inhaled a large amount of foreign
substance; let's say, large amounts of foreign particles into my nose, can that not create a reaction that would cause a sinus infection and sinusitis? A. No, the particles in tile dust that you describe
are -- I think, are really too thick, too large to be inhaled, unless we are talking about a very fine dust. I
believe, under those circumstances, I think the secondhand smoke will be much more likely to be a cause. Q. Let me ask you this: If it was sawdust, very
fine level, very small particles of sawdust or any other type of most minute dust that you can think of, high doses, couldn't that lead to sinusitis? A. Q. I really don't know. Let me ask you this, Dr. Munzer: Are you saying
that the risk factors, based upon what you have heard here today, lead you to believe that these three occasions that Mr. Schuman went to the doctor could have caused these illnesses, correct? A. Q. A. It's possible. But there are other possibilities as well? That's correct.
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Q.
So despite what I heard, your testimony with
Mr. Szymkowicz, you are not saying that secondhand smoke is the only thing that could have caused his three conditions that he went to the doctor for, is that right? A. Q. You are confusing me. Okay. Well, many things can lead to the
development of sinusitis? A. Q. Correct. And you are sitting here today saying based upon
what you heard in the Courtroom from Mr. Schuman, you think that that's the risk factor that led to sinusitis? A. Q. I said before, I think it's possible. What are some other possibilities that we
haven't discussed with Mr. Schuman? A. Q. A. Q. I don't know of any others. Okay. Why not?
Because I really didn't hear about any others. Have you sat down with Mr. Schuman and taken a
history to learn what could have also been possibilities for his development of these three illnesses that he went to doctors for? A. Q. No, I have not. Let me take a look at the three illnesses that
we are talking about that you are discussing; if I may retrieve these for a minute.
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Occurred over a period of time, correct?
The
first was January looks like 4th or 7th, 2008, correct? A. Q. Correct. And the other is, looks like, January 4th, 2008 Same day, correct? This is January 4th,
as well, correct? A.
No, this is March 9th.
I'm sorry; looking at the wrong thing. Looks like this is patient notes. That's his
Exactly, yes. One of these is what he filled out; one of these
looks like also what the doctor filled out? A. I don't know. They may both have been done by
the doctor. Q. A. Q. A. Q. A. Q. A. Q. A. Q. This is one occasion? Correct. Then we have here chest X-ray, right? February 19th, 2009. So a year later? Correct. And this was a chest X-ray that showed what? No active disease. So there was no disease in that patient? No disease by chest X-ray. No evidence by that chest X-ray?
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A. Q.
Right. Plaintiff's Exhibit No. 13 is dated February
24th, 2009, correct? A. Q. Correct. So about eleven months after this first visit to
the doctor that's noted here, correct; actually, this one mentioned an X-ray, does it not at the top there? A. Q. A. Yes. Discussed X-ray, right.
What does this Patient Notes indicate? Postnasal drip, and he prescribes Atrovent nasal
spray, which is prescribed very typically on nasal congestion and to relieve the congestion, and he is also taking, on the right-hand side, right-hand column, he's taking Nasonex, which is usually prescribed for a chronic sinus condition. Q. Robitussin is an expectorant.
That's what the doctor prescribed on this
occasion, correct? A. I don't think so. I think he prescribed This
Atrovent nasal spray.
These are the medications.
is, in fact, a different handwriting.
I assume this is by
the nurse recording his current medications, Nasonex and Robitussin. Q. When he went to the doctor on that occasion, you
think he reported to the nurse taking Nasonex, an over the --
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A. Q. A. Q. A.
That's what I would --- over the counter? No, prescribed. Robitussin is over the counter? Robitussin is over the counter. The Nasonex is
a form of cortisone. relieve congestion. Q.
That is inhaled in the nose to
So if somebody had a sinus infection in their
past, still had Nasonex in their medicine cabinet; got another sinus infection, they can use it again? A. Nasonex, if it's used correctly, should be used
continually. Q. A. Q. does? A. Q. A. Q. No. So you don't know? No. Okay. And you didn't see anything in his But somebody could do that, correct? Sure. You didn't talk to Mr. Schuman about what he
medical records that you reviewed that shows any direct -any treating physician, or any physician for that matter, that diagnosed Mr. Schuman with a chronic sinus condition, did you? A. No.
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Q.
So we have one doctor visit in January of 2008,
and then we have this one in February of 2009; no doctors' visits in between there that you can -- that you reviewed medical records for, correct? A. I don't know of any. There may have been, but I
really don't know. Q. Nothing that you were provided, that you are
relying on, to give your opinions here, correct? A. Q. That's correct. And we have another document here which is dated
December 7th, 2009? A. Q. Correct. So this one is about ten months later from the
last occasion, correct? A. Q. at least? A. Q. I assume, yes. And in this one, actually for medications, what Correct. This is the same doctor, same doctor's office,
does it indicate there? A. Q. Nothing. So if it indicates nothing here, that would
actually seem to suggest that he was not taking a prescribed dose for a chronic condition of Nasonex? A. Correct.
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Q.
And what does this report say from this doctor
that was ten months later? A. Patient in with sinus congestion, open
parenthesis, five days, close paren. I have a hard time reading this; deciphering this. I can read he prescribed ampicillin, Mucinex.
These are typically prescribed for sinus infections. Q. A. Taken them myself. For sinus infection. He described nasal congestion, pain bilateral frontal sinuses on pressure. Q. When you get a sinus infection, sometimes it That's what they are talking about?
hurts in the front. A.
Correct, it indicates certainly significant Certainly.
sinus infection. Q.
In this case, it indicates he has had these
symptoms five days before he went to the doctor, is that right? A. Q. That's right. So by that time, probably more symptoms than if
he went when the symptoms first arrived? A. Q. Not necessarily. That's been my experience. So December, so, again, we have got those three occasions, and then these other medical records here, he
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went to the doctor again in May of 2010; so, we are talking six months after that event, and that was for poison ivy, right? A. Q. That's correct. Unrelated to any conditions that would result
from exposure to secondhand smoke, I presume? A. Q. I'll concede that. And September 13th, 2010, Mr. Schuman goes to
the doctor again; so, if we are just talking about the distance that you believe could possibly relate to secondhand smoke, we are now talking nine months after, nine, ten months after he was there last time, correct? A. Q. Correct. Okay. And this was actually not for treatment This was just a
for any conditions, correct? consultation? A.
That's what it says.
Says patient in for
consultation. MR. FISHER: I'm sorry. For the court reporter,
I'm referring now to Plaintiff's Exhibit No. 16 marked for identification. BY MR. FISHER: Q. That consultation has nothing to do with any
diagnosis or actually for treatment, treatment on that occasion; so, we have got the three occasions?
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A.
Consultation could involve, you know, taking a
history; certainly may not include a physical exam. Q. Right. No physical exam. Based upon the notes
there, there's no indication he went in to the doctor, on that occasion, because he was suffering from symptoms of sinus infection or respiratory distress on that day, correct? At the time he went to that visit, I think if
you look at the notes, they are talking about his history and not any current condition he's suffering from, is that right? A. Q. That's correct. As a matter of fact, I think if I recall
correctly -A. Actually, he does perform a physical exam
because it says here, "subjective," which is exactly the term I used earlier of symptoms; so, he describes that "In the past we have seen him almost exclusively for his respiratory problems, including sinusitis and bronchitis. He's concerned that secondhand smoke from his neighbors may be contributing to him getting these illnesses. does not smoke himself; has no history of asthma." notes, he gets his symptoms primarily in the winter. He As he We
have seen him in the past in January (sic) and February. He, mentioned "objective" the way I used the term earlier, which is an examination.
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Q. occasion? A.
And the examination showed what on that
Nothing.
Actually, examination is normal, and
he says his assessment, "At the present time, he appears well." I can only say the secondhand smoke he's
experienced -- he is experiencing is having an influence on his respiratory illness." Q. A. Q. A. Q. A. Q. "Influence" is not cause, is it? It could be. Okay. Very general term. You don't know? No, I don't know. You certainly don't know what this doctor Could be either.
thought about whether Mr. Schuman's conditions were actually caused by exposure to secondhand smoke, do you? A. Well, I don't know what he meant. THE COURT: MR FISHER: THE COURT: How much longer, you anticipate? Ten minutes, Your Honor? Ten minutes, okay.
I usually like to stop around 4:00 because of staff has a lot of stuff to do. away by 4:30 on Fridays. MR. FISHER: THE COURT: I'll try to wrap it up. We will go a few minutes. We are I like to let them get
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coming back Monday anyway. MR. FISHER: THE COURT: I am almost done. Go ahead.
BY MR. FISHER: Q. Are you familiar with the term "psychosomatic"
conditions? A. Q. A. Yes. What does that mean? It's the influence of the mind over the body in
terms of causing illnesses. Q. Is that something that is possible in any
individual? A. Q. Yes. A psychosomatic condition can develop from
somebody, for example, reading mounds and mounds of literature on a specific -- let me ask you this: psychosomatic conditions, in your mind, develop? they develop? A. I have had some experience with this. When I How does How can
was at the University of Rochester, I worked with Dr. George Engel, who is one of the founders, really, of the whole field of the psychosomatic medicine, and basically, it means that the mind, there is a connection between what happens in a person's state of mind and their physical well-being, and the prime example of that, for
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example, is the person who is, quote, a worrier and developed peptic ulcer disease, develops an ulcer, or a person who has -- who is extremely scared, and has a heart attack as a result. Those would be examples of It's not a person -- well, anyhow,
psychosomatic illness. I'll stop there. Q.
So if somebody develops a high level of fear of
something, that can lead to a physical manifestation of symptoms that they believe they are suffering from, is that correct? A. Q. something. Not quite. I mean, fear.
Well, let's say that I am highly afraid of Give me an example of something I could be
highly afraid of that could result in me having some physical reaction. Let me give you an example? A. Q. Okay. My daughter is afraid of heights, and so now
when she understands that she is going to be somewhere she is going to be high up looking down, one of those elevators in New York; looks out; glass windows, before she even gets in, she starts to tremble a little bit; before she even gets in that elevator; so, that's from her fear, she developed a physical condition. those types of example, correct? That's one of
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A. Q.
Correct. So if somebody has read a lot of literature on
the potential harms from exposure to secondhand smoke, they could actually work themself up into a psychosomatic condition that they would have a reaction before they even actually are exposed to the smoke, is that not correct? A. Q. A. I never heard of that. Is it possible? Anything is possible, but I think it would be
highly unlikely. Q. A. Q. headaches? A. Q. A. headache. Q. A. Q. A. Q. It's a real headache. It can come from stress? Yes. As a matter of fact, I think -Doesn't make it any less real. It's a real There's many causes of headaches, correct? That's correct. Stress being one of them. Stress is a cause of
It could come from stress. You know that Mr. Schuman is a lawyer, correct? Yes. And would you agree that that can be a stressful
job at times? A. After watching the last few days, yes.
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Q.
And there's other things, for example, that can Have you ever
create somebody -- let me ask you this.
examined a patient for treatment that came to you and told you -- when they were describing their history of symptoms, have they ever described to you the words, I have rapid eye blink? A. Q. No. Okay. What would they normally say if they were
talking about their eyes blinking? A. Q. correct? A. Q. That's correct. Okay. If they read any type of a medical My eyes are irritated, yeah. They wouldn't say, I have rapid eye blink,
journal or in a report from Mr. Repace, for example, they might know when they come to you, that eyes blink a lot because of secondhand smoke. medical terms, correct? A. Q. That's correct. Is it possible, after listening to Mr. Schuman's That's rapid eye blink in
testimony in this Courtroom, that it's possible that those occasions in which he described that he had a headache, rapid eye blink, as he put it, and other discomforts, that those were caused by something other than the exposure to secondhand smoke while he was living in his unit during
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construction by Mr. Gervasi and his crew? A. No, I really do believe, after listening to him,
that his symptoms were due to exposure to the secondhand smoke. Q. Do you believe that glue compounds that have
high levels of volatile organic compounds off gassing smells; for example, if I use urethane to paint base boards, creates a massive smell; gives me a headache, that can happen, correct? A. Q. Correct. And you're aware, after listening to the
testimony, that Mr. Schuman was in his unit while Mr. Gervasi's crew were doing things like staining with urethane, correct? A. Well, he was there for part of the time. I
really don't recall specifically. Q. Well, if I told you his testimony was that he
was there during those times; that could, in fact, have been a possible cause also of a headache, correct? A. Q. At that time? Yes? MR. FISHER: Your Honor, I apologize. I believe
where some of these answers are going have resulted in me going a little longer than I expected. THE COURT: If you are talking a few minutes,
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one thing -MR. FISHER: Probably another ten minutes.
That's where I am right now. THE COURT: Anticipating length of Redirect,
we'll try a few more minutes. MR. FISHER: THE COURT: I apologize, Your Honor. Apologize to them.
BY MR. FISHER: Q. Is part of your conclusions that you have drawn
here today based upon the results that Mr. Repace reported in his testimony with respect to the levels that he was getting in Mr. Schuman's unit? A. Not so much the specific levels as to just
showing that he was exposed to secondhand smoke; so, it did play a role. Q. You heard from him, Mr. Repace, that based upon
some of his studies, that fifty percent of individuals that live in multifamily dwellings like Mr. Schuman experience exposure to secondhand smoke, correct? A. Q. I remember that. Okay. So do you believe that fifty percent --
so those fifty percent -- let's take that category of people that are exposed to secondhand smoke in multifamily living. Do you believe that all of those individuals have
developed harm from exposure to secondhand smoke?
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A. Q. A. Q. A. Q.
Not necessarily. Okay. But they could, correct?
They could. And they couldn't? That's correct. Wouldn't you agree that the best way to
determine whether Mr. Schuman's reported symptoms of exposure to secondhand smoke are, in fact, coming from secondhand smoke, would be to do a more thorough evaluation of him by taking a history, for example? A. I'm not sure that it would really add very much It's possible.
to what I have heard. Q.
Certainly help to have more information from
Mr. Schuman other than just what lawyers have asked him in the courtroom, correct? A. Q. I think you have been very thorough. That's fair. In medical terms, there's a difference between possible risks of harm and probable risk, is that correct? A. Q. Correct. Probability means more likely than not to
actually develop a disease, for example, correct? A. ways. Probability can be expressed in many different It doesn't mean, necessarily, more likely. It's
not the same to say more likely than not, no; for example,
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maybe twenty-five percent probability, ten percent probability, five percent, one percent, you know, so probability does not mean the same as more likely than not. Q. Okay. The possible development of a disease and
probable development, does that mean something different to you? A. Q. Isn't possibility really just the risk? Correct. Probability is a percentage, chance of actually
developing that disease? A. Q. Likelihood. Can you say that there's a specific likelihood
specifically with respect to Mr. Schuman's developing an actual disease as a result of his exposure to secondhand smoke? A. Q. No. Are you aware of any scientific or medical
literature finding that someone has developed lung cancer, heart disease or bronchitis because of exposure to secondhand smoke levels consistent with Mr. Schuman's exposure based upon what you heard in Court? A. Q. Not specifically, no. Are you familiar with any studies on toxicology
of secondhand smoke that addresses the levels of secondhand smoke that Mr. Schuman is being exposed to?
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A.
What I can say to -- certainly, in the latest
Surgeon General's Report, there is a report on fact that very low levels can deduce changes in the epithelial lining of blood vessels and that these occur very rapidly and at fairly low levels; so, it's possible, even at low levels, taking that advice from the Surgeon General's Report, can be dangerous. Q. Okay. It's a possible risk to populations of
individuals to -- Surgeon General's Report talks about possible risks to categories of people; not specific individuals, correct? A. That is what we use to make recommendations
about specific individuals. Q. Right. If you can tell us, you have testified
before government bodies before, correct? A. Q. Correct. About the risks and dangers of secondhand smoke,
among other things, correct? A. Q. Correct. But to this day, the legislature hasn't gone as
far as to say the sale of cigarettes is banned in the United States? A. Q. That's correct. As a matter of fact, at Washington Adventist
Hospital, at one point in time, there was an area outside
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the hospital where people used to congregate and smoke? A. Q. A. Q. A. Q. A. Q. Awful. Awful? Terrible place. What did the hospital do? Got rid of it. They banned it from their property? Yeah. Smoke-free campus right now.
They adopted a rule consistent with what it was
allowed to do, owner of that property, to ban smoking completely? A. Correct, and the same thing is true for most We all did it at the same time.
hospitals in this area. Q. correct? A. I don't know. MR. FISHER:
You understand Greenbelt Homes hasn't done that,
Court's indulgence, Your Honor.
BY MR. FISHER: Q. Dr. Munzer, I'm almost done. Can smells trigger symptoms of illness? smells, olfactory odors, trigger symptoms in an individual? A. Well, yes, allergic reaction; for example, if a Can
person is allergic to something, that's probably not directly initiated by smell. I don't know --
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Q.
There's usually some other aspect of it
involved, correct? A. Q. Yes. You never followed up with Dr. Granite directly
to talk about Mr. Schuman, did you? A. Q. A. Q. No. So you never talked to his treating physician? No. So you never found any additional information
that would help you in determining whether the secondhand smoke was the only possible thing that was causing Mr. Schuman's described symptoms? A. Q. That's correct. Wouldn't you expect if somebody was exposed to
the levels of secondhand smoke; not that Mr. Repace actually found, but what Mr. Schuman believes he's being exposed to, based upon how he described it, don't you think there would be more reports from doctors that he went to a doctor more than one time, once a year in three years? A. Q. A. Q. No. Why is that? People don't like to go to doctors. Okay. But if somebody has a sinus infection;
it's not treated, what happens?
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A.
Well, they have continuing symptoms.
Sometimes,
you know, the sinusitis goes away by itself. In fact, probably over prescription of antibiotics, in general, for the condition, and so it's not unusual for a person like Mr. Schuman not to see a physician very frequently. Q. Okay. If you were Mr. Schuman's treating
physician, what would you advise him, based upon your review of his medical records, with respect to what he could do to protect himself in the situation? A. Well, since I'm not his treating physician, I
really can't say that except avoidance of the secondhand smoke. I really don't have enough information to give
him, you know. Q. But isn't it true you would advise every person
in this Courtroom avoid exposure to secondhand smoke? A. Especially if they are sensitive to it, and
certainly, I think, yes, reading the Surgeon General's Report and the experience I have had over the years, say, yes, it's best to avoid secondhand smoke all together. Q. But in society today, it's reasonable to expect,
especially living where Mr. Schuman lives, you may be exposed to secondhand smoke on occasion? A. There's a difference to being exposed on
occasion and being exposed recurrently or continuously.
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Q. A. Q.
But it's something you could expect? Yeah, in this day and age, in many places, yes. If you live next to somebody fourteen or more
years, you know they are a smoker, you are going to expect, reasonably, you are going to get exposed to it as Mr. Schuman has? A. Yes. This is also where society is evolving;
standards are changing. Q. A. We are not there yet, though, is that right? It all depends. There are more and more places
that are now smoke free. Q. At Greenbelt, Maryland, as GHI, we are not there
yet based upon the testimony you heard in Court, is that right? A. That's right. THE COURT: MR. POPOVIC: THE COURT: Mr. Popovic, you have any questions? No, thank you. Any Redirect. REDIRECT EXAMINATION BY MR. SZYMKOWICZ: Q. You would agree perfume can make people sick;
make people sneeze, for example? A. Q. Yes. You would agree that the smell of rotten eggs
can make people noxious.
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Do you believe that Mr. Schuman's conditions, as he described them here in Court, appear to be psychosomatic or do you believe they have an objective basis? MR. FISHER: Objection, Your Honor.
Mr. Munzer -- excuse me -- testified that he doesn't know because he has never examined Mr. Schuman; isn't able to make a finding. MR. SZYMKOWICZ: Understand what I asked from
listening to him in Court today. THE COURT: And based on follow-up to your
questions upon that area, I'll allow it. THE WITNESS: are psychosomatic. BY MR. SZYMKOWICZ: Why is that? I think his is the constellation of symptoms I do not believe that his symptoms
that is frequently described in people who are exposed to secondhand smoke. If there was no evidence of exposure to
secondhand smoke and I had this constellation of symptoms, then I would say to you, maybe, it is psychosomatic. THE COURT: Anything based on that? RECROSS-EXAMINATION BY MR. FISHER: Dr. Munzer, if somebody is exposed to secondhand
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smoke over a period of time; let's say that exposure is not disputed, and then the exposure goes away, but they still believe they are being exposed to secondhand smoke, could that develop into a psychosomatic symptom or condition? A. really -Q. You don't know. You'd have to really find out I really can't speculate on that. It's
more information to determine whether somebody has a condition or they don't, correct, as a doctor? A. I think, yeah. In other words, can symptoms
persist after the exposure has ceased? Q. A. Q. Correct? Yes. Okay. I never heard of that.
You heard Mr. Schuman testify that he was woken
up from his sleep -- did you hear him testify to that -because of secondhand smoke? A. Q. A. Q. A. Q. He told me he didn't sleep well. He didn't sleep well? That's what I remember. A person cannot sleep well from a lot of things? Absolutely. Do you know, to a reasonable degree of medical
certainty, whether or not sleeping well is associated directly with exposure to secondhand smoke? I didn't see
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that in any literature. A. No. MR. FISHER: THE COURT: No other questions, Your Honor. Anything else?
Shoot for Monday morning, 9:00 o'clock. Thank you, sir. MR. SZYMKOWICZ: our case. MR. FISHER: Well, I got one or two things I got You may step down. Your Honor, that's going to be
to deal with, and the other thing is we ask for Your Honor to decide on your request via the transcript because I don't want -- have to prepare for closing argument. Mr. Schuman has agreed to pay for the transcript order that -THE COURT: In all likelihood, we will have some
time between the close of all of the evidence, because I have got a lot of stuff to review, and I won't have an opportunity, at this particular weekend, to go over it; also be thinking about a date a few weeks down the road where we might get together. MR. FISHER: Your Honor, if I can clarify what
we are talking about, I have no objection if the Court, after hearing all the evidence in this case and after hearing closing arguments, wants to reserve and issue a ruling down the line, but I think it's unfair to the
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parties and, really, a little out of the ordinary just to not let us proceed with closing arguments at the end of the case. Letting Your Honor take it under advisement to We've got to go
delaying closing argument is prejudicial. back and do more work. THE COURT:
I'll take closing arguments at the
end, but I'm not going to render a decision for awhile. My thinking, I will be coming back in Open Court. MR. FISHER: That's what I would expect, but
closing arguments will proceed when we are done with this case? THE COURT: I think we can do that. Thank you, Your Honor.
MR. SZYMKOWICZ: MR. FISHER: here Monday? THE COURT:
Your Honor, what time you want us
9:00 o'clock, if we can get here.
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REPORTER'S CERTIFICATE I, Diana L. Wakefield, an Official Court Reporter for the Circuit Court for Prince George's County, Maryland, do hereby certify that I stenographically recorded the proceedings in the matter of David S. Schuman vs. Greenbelt Homes, Inc., et al, Civil Action Law 10-06047, on August 19, 2011, before the Honorable Albert W. Northrop, Associate Judge. I further certify that the page numbers one through 197 constitute the official transcript of the testimony of the witnesses as transcribed by me from my stenographic notes to the within typewritten matter in a complete manner to the best of my knowledge and belief. In Witness Whereof, I have affixed my signature on this the 9th day of September, 2011.
_________________________________ DIANA L. WAKEFIELD, RMR Official Court Reporter

Schuman v. Greenbelt Homes - Record Extract Volume 2 of 4

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Schuman v. Greenbelt Homes - Record Extract Volume 2 of 4

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IN THE COURT OF SPECIAL APPEALS OF MARYLAND --------------------------------------------------------------------------------------Number 2020 September Term, 2011 --------------------------------------------------------------------------------------DAVID S. SCHUMAN, Appellant v.

Counsel for Appellant David S. Schuman

BEFORE: HONORABLE ALBERT W. NORTHROP, Associate Judge

Record Extract Page 458

Record Extract Page 459

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on behalf of Greenbelt Homes, Inc. MR. GOECKE: Michael Goecke on behalf of

MS. FISHER: Greenbelt Homes.

Your Honor, Gretchen Overdurff from

Record Extract Page 463

stressful day. patio.

Mr. Popovic is outside smoking on his I can't use my

I can't sit out on my patio.

rocking chairs. inside. Q.

I had to close all my windows and go

Do you consider the Popovics' smoking to be a

property, and I have to move.

Record Extract Page 464

He's testifying, Your Honor. I believe what he's referring to

without having the smoke.

inconvenience that you suffered? A. Absolutely, continued to this time. I continued

to suffer up to and including last night.

Record Extract Page 465

this is very hurtful and painful to me.

It's caused me a lot of

My house is close to work.

I spent a lot of time and

Record Extract Page 466

effort in upgrading the place. I don't want to leave. choice. Q.

It looks beautiful inside. I have no other

Do you believe that the Popovics' smoking

use my rocking chairs; enjoy my property. use my backyard.

I would like to keep my windows open;

more than offend your senses? A. I believe it did. It caused me a lot of

difficulties for which I had to go see Dr. Granite.

Record Extract Page 467

Objection, Your Honor. His belief, Your Honor.

MR. SZYMKOWICZ: THE COURT: THE WITNESS:

I'll accept it. I went to see Dr. Granite on, at

completely unreasonable. Q. Do you believe that the Popovics' smoking

Record Extract Page 468

competent to testify to. estate.

He has no expertise in real

He has no ability to testify to about what does He cannot

and does not affect the market conditions.

It's a bad time to sell a house, and I

I don't have use of part of the

outside and enjoy my patio.

Like Dory indicated she can't I'm

use her screened-in porch, I can't use my back patio.

the parts that you are not able to use?

Record Extract Page 469

MR. FISHER: THE COURT: THE WITNESS:

percentage, not being an expert.

yard; has a patio I can't use.

it; it's a major feature of the property.

Record Extract Page 470

Record Extract Page 471

issue; goes to the ultimate issue of the case.

I'll strike that comment. Let me answer it this way: I

Record Extract Page 472

BY MR. SZYMKOWICZ: -- unless the injunction is granted. Do; you