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No Proof of Pesticide in Office

A Richmond U.S. District Court dismisses plaintiff’s premises liability claim alleging injury from exposure to the toxic substance Merphos in office space leased from defendant realty company; although plaintiff has an expert who will testify she suffers from exposure to a toxic substance, there is no evidence as to where the exposure may have occurred, and defendants are entitled to summary judgment.

After leasing the office space for a number of years, plaintiff alleges she entered the office space after hours on July 18, 2008, and smelled a “strange gaseous odor” on the first floor. She observed a number of dead insets within the building. In late July or early August, she claims she began to experience a number of adverse health symptoms. She hired a certified laboratory on Dec. 8, 2008, to conduct environmental testing in her building. Specifically, she had wipe samples taken around the office space and analyzed.

The initial lab tests indicated the presence of Merphos, which plaintiff alleges has been banned from legal sale and use as a pesticide by the Environmental Protection Agency. She sued defendants, claiming defendant Western Industries-South LLC, acting on behalf of Highwoods Realty LP, applies the pesticides in the building where plaintiff rented office space, causing her injuries.

The lab that initially detected Merphos later emailed plaintiff to tell her the test result likely was a false positive. Western maintains it has never used Merphos in any of the pesticides it has used, and it denies using any organophosphates in the pesticides it has applied since 1994. Highwoods also took wipe samples from the building in July 2010 for analysis, which showed no Merphos in the building.

In spite of this collapse in analytical support for the contention that Merphos was applied in the building, plaintiff nevertheless insists that sufficient circumstantial evidence exists to survive summary judgment. She argues that although Western denies using pesticides in the building in July 2008, she found numerous dead bugs and the smell of decay when she entered the building after hours. She also cites her apparent medical injury, including peripheral neuropathy, as circumstantial evidence of the presence of Merphos, as well as testimony from her toxicology expert.

But the fact remains plaintiff has yet to produce a single piece of evidence or expert testimony that Merphos, or any other toxic chemical, was present in the office building.

Lindsey v. Highwoods Realty LP (Hudson) No. 3:11cv447, Feb. 3, 2012; USDC at Richmond, Va. VLW 012-3-042, 9 pp.

VLW 012-3-042

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