The plaintiff was called in to work on the sprinkler system in the basement of the facility and had been told at a prior visit by representatives of defendant Amrex that he did not require any respiratory protection such as a respirator. Workers on the floor above were apparently cleaning out 55 gallon drums that had been used for chemical storage and the residue of the chemicals leaked through the floor into the area where the plaintiff was working. As the liquid leaked into the basement two incompatible chemicals, a strong acid and sodium hypochlorite, mixed together creating a cloud of chlorine gas that the plaintiff inhaled.

The plaintiff immediately experienced shortness of breath, coughing and gagging and made his way up to the floor above where he observed a puddle of liquid on the floor above where he had been working. One of the workers remarked to him at that point not to stand in the puddle because “it will eat your boots off.” He was not offered any assistance by the Amrex representative who did nothing but document the incident.  He immediately drove himself to the doctor where burns were noted on his chest where the chemical mixture had splattered, and he was also diagnosed with damage to his throat and airways from inhalation of the gas. Over the next few months his breathing difficulties worsened to the point that he could no longer perform his usual work which required heavy exertion. At that point he started a residential plumbing and heating business where he could work at his own pace for less hours and do lighter-duty plumbing.

Testifying on behalf of the plaintiff were his treating pulmonologist, Dr. Richard Baron, an expert in industrial and pulmonary medicine, Dr. Mark Utell from the University of Rochester Medical Center, as well as a toxicologist, Dr. William Sawyer and an environmental chemist, Dr. John Hassett of the S.U.N.Y. College of Environmental Sciences and Forestry in Syracuse. Both Dr. Baron and Dr. Utell testified that the plaintiff’s breathing had steadily deteriorated over the past four years to the point it was only 30% of normal. They both viewed his prognosis as guarded and that any further deterioration would likely make him short of breath even at rest. Dr. Sawyer testified about the known dangers of chlorine gas and the medical literature reports of injuries occurring from chlorine gas inhalation similar to the one the plaintiff suffered. Dr. Hassett calculated the amounts of acid and sodium hypochlorite required to produce toxic levels of chlorine gas. His calculations revealed that even a teaspoon of each when mixed together was sufficient to create dangerous levels of chlorine, especially in an unventilated environment like the basement where the plaintiff was exposed.

The jury awarded the plaintiff $140,000 for past pain and suffering and loss of enjoyment of life and $1,000,000 for future pain and suffering and loss of enjoyment of life. They also awarded him $11,150 in past medical expenses and $100,000 in future medical expenses. Finally, the jury awarded $1,260,000 in future lost wages over the next 21 years.

New York Drivers Need to Protect Themselves By Making Sure They Have Enough “SUM Coverage”

Even before the latest economic crisis began, drivers in New York could choose to register a motor vehicle and buy only the minimum $25,000 of liability coverage required by law. In fact, for people who have had multiple accidents, $25,000 is frequently all the liability insurance a company will sell to them. These people are in what the insurance companies refer to as the “high risk pool.” Not coincidentally, the people who cause the most accidents and injure the most people on the road are well-represented in this high risk group.

That is why now it is more important than ever for drivers in New York to make sure that they have enough of their own insurance to protect themselves in case they are in an automobile accident caused by someone who has little or no liability insurance to pay you for your injuries. Supplemental Uninsured/Underinsured Motorist insurance (referred to as “SUM coverage”) is a type of insurance that you can buy to protect yourself and your family from those uninsured or underinsured drivers. By having enough SUM coverage, you no longer put yourself at the mercy of those drivers who either cannot afford insurance or cannot afford enough insurance because of their history of being bad drivers and getting into lots of accidents.

Most people already have SUM coverage and do not know it. However, the vast majority have only the minimum amount of SUM coverage required by law, which is $25,000. This is because agents and insurers rarely discuss SUM coverage when you purchase insurance, unless you specifically ask about it. If you buy only the minimum amount of SUM coverage, it will benefit you only if you are injured by a driver who has no insurance at all. Also, you will only be entitled to receive up to $25,000 to cover the damages and expenses you will incur as a result of being in an accident.

How Much SUM Coverage Should You Have?

A quick look at the declarations page of your automobile insurance policy (the page with all of the numbers and prices on it) will tell you how much SUM coverage you currently have and how well you and your family are protected.

As a rule, you should always have the same amount of SUM coverage as liability coverage. For example, if you buy an auto insurance policy with liability coverage of $250,000 or $500,000 (which covers damages that you would owe others if you caused an accident), you can and should protect yourself and your family by purchasing an equal amount of SUM coverage – $250,000 or $500,000. The cost of SUM coverage is reasonably priced, and is much less expensive than the cost of liability coverage.

Also, if you have an “umbrella” insurance policy that covers you and your family above your auto liability and homeowners’ insurance policy limits, you can get even more SUM coverage added on to that umbrella policy at a modest cost.

Don’t Wait Until It’s Too Late

Unfortunately, most people learn they did not buy enough SUM coverage when it’s too late – after they have been seriously injured in an accident by a driver who is either uninsured or has only minimum insurance. Only then do they recognize that they could have protected themselves by purchasing sufficient SUM coverage that would have helped them replace their lost wages and pay for other accident-related expenses. This group of surprised and sorry victims is bound to grow in the near future as more and more people begin to drive with less and less insurance.

One final note: If you are in an auto accident, it is very important that you immediately notify your SUM insurance company about the accident. (Click on the following link to read about what other steps you should take after being in an auto accident.) Many insurance policies provide that you will waive your right to make a claim for SUM coverage unless you give notice of the accident to the insurance company soon after it happens. It may seem obvious that you should notify your own insurance company immediately after you are in an accident. However, when you are driving someone else’s car or are a passenger or pedestrian involved in an accident, it may not occur to you that you could also be covered by your own insurance policy. SUM coverage typically insures you in all of these situations. Immediately notifying your SUM insurance company is important to preserving your rights and helping you recover from your injuries.

The Rochester, New York law firm of Faraci Lange, LLP was recognized in the 2008 Upstate New York addition of Super Lawyers with five of its attorneys listed in this prestigious publication. Founders Angelo G. Faraci and Paul K. Lange were both listed in the personal injury section, while Joseph A. Regan, Brian M. Zorn and Stephen G. Schwarz were listed in the medical malpractice section. Faraci was also listed as one of the ten lawyers receiving the highest point totals (inclusive of all legal specialties) and Schwarz was listed as being in the top 50 for Upstate New York.

According to the Super Lawyers publication, only 5% of the lawyers in New York State are named to this list, which recognizes attorneys who have attained a high degree of peer recognition and professional achievement. The selection is made after a rigorous process that includes peer review and nomination, as well as extensive background checks and research into each prospective candidate.

Such peer recognition is nothing new for the attorneys at Faraci Lange, LLP. The firm also has six of its attorneys (Faraci, Lange, Schwarz, Zorn, Regan, and Matthew F. Belanger) listed in Best Lawyers in America, four members of the American Board of Trial Advocates (John A. Falk, Faraci, Zorn and Schwarz) and three members of the American College of Trial Lawyers (Faraci and Schwarz, and Zorn, who will be inducted on September 27, 2008 at the annual meeting of the ACTL in Toronto).

In recent years, however, the danger of vapor intrusion is finally getting the attention it deserves from regulators and legislators across the country. One of the largest vapor intrusion sites discovered to date is in Endicott, New York. A plume of TCE and other VOCs are contaminating the air in hundreds of Endicott homes, requiring the installation of hundreds of individual vapor intrusion remediation systems. Faraci Lange, LLP, a Rochester, New York law firm, is involved in toxic chemical exposure litigation commenced against IBM on behalf of the victims of this contamination.

What is vapor intrusion?

TCE and other VOCs are by definition volatile. What this means is that when dissolved into or mixed with groundwater, they do not tend to stay put. Instead, they tend to revert to a gaseous phase and drift upward through the soil toward the surface. Whether a particular VOC plume in the groundwater will present a vapor intrusion problem is a function of a number of variables.

First and foremost, the concentrations found in the plume are important. Obviously, the higher the concentrations, the more unstable the plume and the more likely vapor intrusion will occur. Second is the depth of the plume. Groundwater plumes can be shallow, meaning that they are contained in what is termed the “overburden” groundwater, or they can be found in deeper, more permanent groundwater layers. The more shallow the plume, the less distance vapors volatizing out of the plume have to travel before getting to the surface. Therefore, more shallow plumes present a greater likelihood of intrusion. The nature of the soil above the groundwater plume is also an important factor. Soils that are relatively impervious to gas transport are less likely to permit volatized vapors a path to the surface. Conversely, sandy and coarse soils with multiple air spaces present ideal conditions for vapor intrusion.

Even when vapor intrusion is present in a particular neighborhood, the risks to the residents will not be uniform. Homes with deeper and more porous basements will allow more intrusion than those with more sealed foundations and slabs. Other factors, such as the time of year and the circulation inside the house, will play important roles.

What can be done to protect residents from vapor intrusion?

Because of their volatile nature, attempts to remove TCE and most VOCs from groundwater typically involve what are referred to as pump and treat remediation systems. Contaminated groundwater is pumped to the surface to air strippers which permit the volatilization of VOCs into a tower. From the tower, the VOCs are discharged into the atmosphere or captured in various charcoal type filters for disposal. However, this process is neither fast nor highly efficient. Over many years, this type of technology can reduce the concentrations found in a particular plume. Unfortunately, the presence of the contaminant can never be eliminated completely.

When vapor intrusion is discovered, individual remediation systems must be installed on a house by house basis. This process involves drilling into the foundation and installing a suction system that pulls vapors from beneath the subslab and vents them out above the roof of the house. In order to be effective, these systems need to run 24 hours per day, 7 days per week. They also require effective sealing of all points of entry into the home, including basement floor cracks and utility service entries, to prevent vapor intrusion.

Communities in which there had been confidence that a groundwater problem was harmless are being reinvestigated now by authorities who are looking for the insidious hazard of vapor intrusion. Given the thousands of known TCE plumes throughout the United States, it is extremely likely that vapor intrusion similar to that discovered in Endicott, New York is occurring in numerous other communities and causing potential future illness to thousands.

Written by: Stephen G. Schwarz, Managing Partner, Faraci Lange, LLP