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 George’s County Albert W. Northrop, Associate Judge --------------------------------------------------------------------------------------APPELLANT DAVID S. SCHUMAN’S RECORD EXTRACT Volume I 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

DAVID S. SCHUMAN
Appellant, vs.

GREENBELT HOMES, INC., et al.
Appellees.
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Appeal Number: 2020 September Term, 2011
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RECORD EXTRACT
Table of Contents
1. Prince George’s County Circuit Court Docket Entries………………..1

2. David S. Schuman’s Complaint filed in the Prince George’s County Circuit Court on March 2, 2010…………………………………………….....48 3. David S. Schuman’s “Motion for a Preliminary and a Permanent Injunction and Motion for a Declaratory Judgment” filed in the Prince George’s County Circuit Court on April 6, 2010………………………….....86 4. David S. Schuman’s “Motion to Take Judicial Notice of the Surgeon General’s 2006 Report on Secondhand Smoke” filed in the Prince George’s County Circuit Court on April 6, 2010…………………………...111

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5. David S. Schuman’s “Motion to Take Judicial Notice of the Surgeon General’s 2010 Report on Secondhand Smoke” filed in the Prince George’s County Circuit Court on August 17, 2011………………………132 6. Opinion and Order dated September 1, 2010 of the Honorable Albert W. Northrop, Judge, Prince George’s County Circuit Court, regarding David S. Schuman’s “Motion for a Preliminary and a Permanent Injunction and Motion for a Declaratory Judgment” and filed in the Prince George’s County Circuit Court on September 14, 2010……………………………..140 7. Opinion of the Court of Special Appeals of Maryland dated June 8, 2011 regarding David S. Schuman’s appeal of the denial of his “Motion for a Preliminary and a Permanent Injunction and Motion for a Declaratory Judgment” …………………………..…………………………………………148 8. Trial Transcripts Appellant/Plaintiff David S. Schuman’s Witnesses a. Frank Gervasi Direct Examination……………...……………......…....192 Cross-Examination (by Greenbelt Homes, Inc.) ...….208 Re-Direct Examination…………………...…………….252 Re-Cross-Examination (by Greenbelt Homes, Inc.)...256 Re-Direct Examination…………………...…………….257 Court’s Examination…………………...……………….257 Re-Direct Examination…………………...…………….258 b. Carolyn Hammett Direct Examination……………...…………..........……258

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Cross-Examination (by Greenbelt Homes, Inc.)…….268 Cross-Examination (by Darko Popovic)………………276 Re-Direct Examination…………………...…………….278 Cross-Examination (by Darko Popovic)………………280 Court’s Examination…………………...……………….281 c. Kevin Hammett Direct Examination……………...........................…….282 Cross-Examination (by Greenbelt Homes, Inc.)…….289 Re-Direct Examination……………………………..…..299 d. Dorothy Ipolito Direct Examination…………...……...…….........……..301 Cross-Examination (by Greenbelt Homes, Inc.)…….324 Cross-Examination (by Darko Popovic)………………360 Re-Direct Examination……………………………........362 Re-Cross-Examination (by Greenbelt Homes, Inc.)...367 e. David S. Schuman Direct Examination…………………………………......370 Cross-Examination (by Greenbelt Homes, Inc.)…….474 Re-Direct Examination……………………...………….573 Court’s Examination…………………...……………….575

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f.

GHI’s General Manager, Gretchen Overdurff Direct Examination……………………………….……..578 Cross-Examination (by Greenbelt Homes, Inc.)…….625 Re-Direct Examination……………………...………….634 Re-Cross-Examination (by Greenbelt Homes, Inc.)………………………………………………………637

g.

James L. Repace, MSc. (David S. Schuman’s Expert on Secondhand Smoke) Direct Examination……………...…………….......…...641 Voir Dire (by Greenbelt Homes, Inc.)………………...654 Direct Examination (continued)…………….……...….666 Voir Dire (by Greenbelt Homes, Inc.)………………...670 Direct Examination (continued)…………….……...….674 Cross-Examination (by Greenbelt Homes, Inc.) ...….776 Cross-Examination (by Darko Popovic)………………828 Re-Direct Examination…………………...…………….845 Re-Cross-Examination (by Darko Popovic)………….849

h.

Alfred Munzer, M.D. (David S. Schuman’s Medical Expert) Direct Examination……………...……………......…….852 Voir Dire (by Greenbelt Homes, Inc.)………………...878 Re-Direct Examination …………………..………….....909

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Re-Cross-Examination (by Greenbelt Homes, Inc.)...910 Appellee/Defendant Greenbelt Homes, Inc.’s Witnesses a. Ronald Gots, M.D. (Greenbelt Homes, Inc.’s Expert) Direct Examination……………...……………......…….946 Voir Dire (by David S. Schuman)………………..........958 Direct Examination (continued)…………….……...….967 Cross-Examination (by David S. Schuman) ...……..1016 Cross-Examination (by Darko Popovic) ...………….1039 Re-Direct Examination…………………...…………...1044 Re-Cross-Examination (by David S. Schuman) ......1047 Re-Direct Examination…………………...…………...1057 Re-Cross-Examination (by David S. Schuman).......1057 b. GHI’s Board Member, Silvia Lewis Direct Examination……………………………….……1064 Cross-Examination (by David S. Schuman) ...……..1089 Re-Direct Examination……………………...………...1123 Re-Cross-Examination (by David S. Schuman) ......1137 Re-Direct Examination……………………...………...1141 c. GHI’s Board Member, Tokey Boswell Direct Examination……………………………….……1151
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Cross-Examination (by David S. Schuman)………..1172 Re-Direct Examination……………………...………...1215 Re-Cross-Examination (by David S. Schuman).......1220 d. David S. Schuman Direct Examination……………………………….……1223 Cross-Examination (by David S. Schuman)………..1245 Appellee/Defendant Darko Popovic’s Witnesses a. Darko Popovic Direct Examination…………………………………....1255 Cross-Examination (by David S. Schuman)………..1261 Cross-Examination (by Greenbelt Homes, Inc.)...…1272 Re-Cross-Examination (by David S. Schuman)……1294 Appellant/Plaintiff David S. Schuman’s Rebuttal Witnesses a. GHI’s General Manager, Gretchen Overdurff Direct Examination…………………………………....1315 Cross-Examination (by Greenbelt Homes, Inc.)…...1320 b. David S. Schuman Direct Examination………………………………….…1322

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c.

James L. Repace, MSc. (David S. Schuman’s Expert on Secondhand Smoke) Direct Examination…………………………………….1327 Cross-Examination (by Greenbelt Homes, Inc.)…...1352 Re-Direct Examination……………………...………...1365 Court’s Opinion

a. 9.

Court’s Opinion………………………………………..1422

Trial Exhibits: Court Reporter’s Final “Civil Trial Exhibit List”…………………….1438 Court Reporter’s Final “Master Index”……………………………..1443 Exhibits Introduced by Appellant/Plaintiff David S. Schuman Exhibit 1: Photograph of “Garden” Side of David S. Schuman’s Home Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............202 Reproduced in Record Extract……………………….1447 Exhibit 2: Photograph of “Service” Side of David S. Schuman’s Home Marked for Identification at Trial………………………192 Admitted into Evidence at Trial……….………............170 Reproduced in Record Extract………………..……..1448

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Exhibit 3:

Curriculum Vitae of David S. Schuman’s Expert Witness, James L. Repace, dated May 2010 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............653 Reproduced in Record Extract………………..……..1449

Exhibit 4:

Expert Report of David S. Schuman’s Expert Witness, James L. Repace, dated June 26, 2009 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….…...........761 Reproduced in Record Extract…………………..…..1503

Exhibit 5:

Expert Report of David S. Schuman’s Expert Witness, James L. Repace, dated August 24, 2010 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……............…763 Reproduced in Record Extract………………..……..1521

Exhibit 6:

Expert Report of David S. Schuman’s Expert Witness, James L. Repace, dated December 10, 2010 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….…...........766 Reproduced in Record Extract……………..………..1539

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Exhibit 7:

Expert Report of David S. Schuman’s Expert Witness, James L. Repace, dated July 18, 2011 Marked for Identification at Trial…………………..…..192 Admitted into Evidence at Trial…………..……...........767 Reproduced in Record Extract…………..…………..1563

Exhibit 8:

Expert Report of David S. Schuman’s Expert Witness, Alfred Munzer, M.D. Marked for Identification at Trial…………………..…..192 Admitted into Evidence at Trial……….……............…858 Reproduced in Record Extract………………..……..1577

Exhibit 19: Greenbelt Homes, Inc.’s “Member Handbook” Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….………............376 Reproduced in Record Extract…………..…………..1581 Exhibit 20: David S. Schuman’s “Cooperative Housing Proprietary Lease and Mutual Ownership Contract” dated November 27, 1995 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……............…374 Reproduced in Record Extract……………..………..1590

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Exhibit 21: Darko Popovic’s and Svetlana Popovic’s “Cooperative Housing Proprietary Lease and Mutual Ownership Contract” dated July 3, 1996 Marked for Identification at Trial…………………..…..192 Admitted into Evidence at Trial……….…….…...........375 Reproduced in Record Extract………………..……..1602 Exhibit 22: David S. Schuman’s Building Permit issued Greenbelt Homes, Inc. dated March 27, 2008 by

Marked for Identification at Trial…………………..…..192 Admitted into Evidence at Trial……….……............…201 Reproduced in Record Extract……………..………..1614 Exhibit 23: David Schuman’s letter to Svetlana Popovic dated January 4, 2009 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……............…404 Reproduced in Record Extract…………………..…..1617 Exhibit 24: Svetlana Popovic’s letter to David Schuman dated January 5, 2009 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….............1405 Reproduced in Record Extract………………..……..1618

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Exhibit 25: Svetlana Popovic’s letter to David Schuman dated January 16, 2009 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............406 Reproduced in Record Extract………………….…...1619 Exhibit 26: David Schuman’s letter to Svetlana Popovic dated January 21, 2009 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............406 Reproduced in Record Extract……………….……...1620 Exhibit 27: David S. Schuman’s letter to Greenbelt Homes, Inc.’s General Manager, Gretchen Overdurff, dated January 26, 2009 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….…...........408 Reproduced in Record Extract…………..…………..1621 Exhibit 28: Svetlana Popovic’s letter to Greenbelt Homes, Inc.’s General Manager, Gretchen Overdurff, dated January 26, 2009 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............409 Reproduced in Record Extract…………………..…..1623

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Exhibit 29: David Schuman’s letter to Svetlana Popovic dated February 2, 2009 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............413 Reproduced in Record Extract……………………....1624 Exhibit 30: Greenbelt Homes, Inc.’s General Manager, Gretchen Overdurff’s letter to Svetlana Popovic dated February 10, 2009 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial…………...……..........579 Reproduced in Record Extract……………..………..1626 Exhibit 31: Greenbelt Homes, Inc.’s General Manager, Gretchen Overdurff’s letter to David S. Schuman dated February 23, 2009 Marked for Identification at Trial…………………..…..192 Admitted into Evidence at Trial……….……...............418 Reproduced in Record Extract…………….………...1627 Exhibit 32: David S. Schuman’s letter to Greenbelt Homes, Inc.’s General Manager, Gretchen Overdurff, dated February 26, 2009 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….…...........419 Reproduced in Record Extract…………..…………..1628

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Exhibit 33: David S. Schuman’s letter to Greenbelt Homes, Inc.’s General Manager, Gretchen Overdurff, dated July 20, 2009 Marked for Identification at Trial…………………..…..192 Admitted into Evidence at Trial……….…….…...........920 Reproduced in Record Extract……………..………..1631 Exhibit 34: David S. Schuman’s letter to Greenbelt Homes, Inc.’s General Manager, Gretchen Overdurff, dated August 24, 2009 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............920 Reproduced in Record Extract……………………….1634 Exhibit 35: Greenbelt Homes, Inc.’s President, Suzette M. Agans’ letter to David S. Schuman dated October 8, 2009 Marked for Identification at Trial…………………..…..192 Admitted into Evidence at Trial……….……..…..........427 Reproduced in Record Extract……………………….1635 Exhibit 36: Greenbelt Homes, Inc.’s President, Suzette M. Agans’ letter to Svetlana Popovic dated October 8, 2009 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….………............580 Reproduced in Record Extract……………………….1636

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Exhibit 37: David S. Schuman’s letter to Greenbelt Homes, Inc.’s President, Suzette M. Agans, dated October 17, 2009 Marked for Identification at Trial………………..……..192 Reserved Admission into Evidence at Trial……….....434 Reproduced in Record Extract……………………....1637 Exhibit 38: David S. Schuman’s letter to Greenbelt Homes, Inc.’s General Manager, Gretchen Overdurff, dated November 30, 2009 Marked for Identification at Trial…………………..…..192 Admitted into Evidence at Trial……….……............…434 Reproduced in RecordExtract…………………..…...1639 Exhibit 39: Greenbelt Homes, Inc.’s General Manager, Gretchen Overdurff’s letter to David S. Schuman dated December 7, 2009 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............435 Reproduced in Record Extract……………….……...1640 Exhibit 40: Svetlana Popovic’s letter to Greenbelt Homes, Inc.’s President, Suzette M. Agans, dated October 11, 2009 Marked for Identification at Trial………………..……..192 Admitted into Evidence at Trial…………...……..........436 Reproduced in Record Extract……………..………..1641

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Exhibit 41: Minutes from GHI’s Member Complaints Panel related to Schuman presentation on September 28, 2009 Marked for Identification at Trial………………..……..192 Admitted into Evidence at Trial……….………............585 Reproduced in Record Extract………………..……..1642 Exhibit 42: Minutes from GHI’s Member Complaints Panel related to Popovic presentation on September 28, 2009 Marked for Identification at Trial…………………..…..192 Admitted into Evidence a.Trial…………………..........585 Reproduced in Record Extract…………..…………..1645 Exhibits Introduced by Appellee/Defendant Darko Popovic Exhibit 1: Photograph of Attic Marked for Identification at Trial……………………....212 Admitted into Evidence at Trial……….…….............1279 Reproduced in Record Extract…………………..…..1649

Exhibits Introduced by Appellee/Defendant Greenbelt Homes, Inc. Exhibit 1: GHI’s By-Laws Marked for Identification at Trial…………………..…..192 Admitted into Evidence at Trial……….…….…...........482 Reproduced in Record Extract……………………….1650

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Exhibit 2:

GHI’s Member Handbook (relevant excerpts)1 Marked for Identification at Trial………………......…..192 Admitted into Evidence at Trial……….………..........1225 Reproduced in Record Extract………………..……..1676

Exhibit 5:

GHI Work Order dated December 16, 1996 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……..…..........482 Reproduced in Record Extract……………..………..1715

Exhibit 6:

David Schuman’s letter to Svetlana Popovic dated November 14, 1996 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............495 Reproduced in Record Extract……………..………..1716

Exhibit 8:

Greenbelt Homes, Inc.’s General Manager, Gretchen Overdurff’s letter to David S. Schuman dated April 17, 1997 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............496 Reproduced in Record Extract…………………..…..1717

1

Unrelated portions of the “Bates” numbered Member Handbook are not reproduced in the Record Extract. The full Member Handbook is part of the record itself as GHI Trial Exhibit 2.
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Exhibit 9:

David S. Schuman’s letter to Greenbelt Homes, Inc.’s Member Services Manager, Joan Krob, dated April 21, 1997 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............497 Reproduced in Record Extract……………………….1718

Exhibit 11: Greenbelt Homes, Inc.’s Member Complaints Panel Chairperson, Keith Jahoda’s letter to Dory Ipolito, Svetlana Popovic and David S. Schuman dated May 16, 1997 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……............…333 Reproduced in Record Extract……………………....1720 Exhibit 12: David S. Schuman’s letter to Greenbelt Homes, Inc.’s Member Complaints Panel Chairperson, Keith Jahoda dated May 22, 1997 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….............1227 Reproduced in Record Extract……………………….1723 Exhibit 13: Greenbelt Homes, Inc.’s Member Services Manager, Joan Krob’s letter to Dory Ipolito, Svetlana Popovic and David S. Schuman dated June 13, 1997 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............338 Reproduced in Record Extract……………..………..1726
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Exhibit 15: Greenbelt Homes, Inc.’s Director of Physical Plant Operations, Eldon Ralph’s letter to Dory Ipolito, dated August 12, 1997 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............326 Reproduced in Record Extract……………………....1727 Exhibit 17: Letter from David S. Schuman to Greenbelt Homes, Inc.’s Director of Physical Plant Operations, Eldon Ralph dated September 4, 1997 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….............1231 Reproduced in Record Extract………………..……..1728 Exhibit 19: Greenbelt Homes, Inc.’s Member Services Manager, Joan Krob’s letter to Dory Ipolito, Svetlana Popovic and David S. Schuman dated September 22, 1997 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….............1233 Reproduced in Record Extract…………………..…..1729 Exhibit 20: Svetlana Popovic’s letter to Greenbelt Homes, Inc.’s Member Complaints Panel Chairperson, Keith Jahoda dated October 18, 1997 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….………..........1275

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Reproduced in Record Extract……………………….1730 Exhibit 23: Greenbelt Homes, Inc.’s General Manager, Gretchen Overdurff’s letter to Dory Ipolito dated November 25, 1997 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............341 Reproduced in Record Extract………………..……..1732 Exhibit 24: Greenbelt Homes, Inc.’s General Manager, Gretchen Overdurff’s letter to Svetlana Popovic dated November 25, 1997 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….............1277 Reproduced in Record Extract………………..……..1733 Exhibit 25: Greenbelt Homes, Inc.’s General Manager, Gretchen Overdurff’s letter to David S. Schuman dated November 25, 1997 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……............…561 Reproduced in Record Extract……………………….1734 Exhibit 26: Gervasi Construction’s letter to David S. Schuman dated July 11, 2007 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............227

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Reproduced in Record Extract……………………....1735 Exhibit 27: David S. Schuman’s “Questions/Clarifications” dated July 19, 2007 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............234 Reproduced in Record Extract………………..……..1741 Exhibit 28: Gervasi Construction’s letter to David S. Schuman dated September 15, 2007 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….............1237 Reproduced in Record Extract……………………….1745 Exhibit 30: Various Emails between David S. Schuman and Gervasi Construction dated April 24, 2008 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….............1239 Reproduced in Record Extract………………..……..1747 Exhibit 31: Email between David S. Schuman and Gervasi Construction dated May 26, 2008 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….............1239 Reproduced in Record Extract…………………..…..1748

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Exhibit 32: Email between David S. Schuman and Gervasi Construction dated June 1, 2008 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….............1241 Reproduced in Record Extract…………………..…..1749 Exhibit 33: Email between David S. Schuman and Gervasi Construction dated June 5, 2008 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….............1241 Reproduced in Record Extract……………………....1750 Exhibit 34: Email between David S. Schuman and Gervasi Construction dated June 8, 2008 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….............1241 Reproduced in Record Extract…………………..…..1751 Exhibit 35: Email between David S. Schuman and Gervasi Construction dated June 19, 2008 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….............1241 Reproduced in Record Extract……………………....1752 Exhibit 36: Gervasi Construction’s Handwritten Note and Diagram Marked for Identification at Trial……………………....192
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Admitted into Evidence at Trial……….…….............1241 Reproduced in Record Extract……………………….1753 Exhibit 37: Email between David S. Schuman and Gervasi Construction dated June 26, 2008 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….............1241 Reproduced in Record Extract……………………….1754 Exhibit 38: Email between David S. Schuman and Gervasi Construction dated July 38, 2008 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….…….............1241 Reproduced in Record Extract……………………….1255 Exhibit 39 Gervasi Construction bill to David S. Schuman dated August 12, 2008 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............248 Reproduced in Record Extract…………………..…..1256 Exhibit 52: David S. Schuman’s letter to James L. Repace dated April 13, 2009 (with diary and pictures) Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……...............531

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Reproduced in Record Extract………………….…...1757 Exhibit 61: Gervasi Construction proposal to David S. Schuman dated September 19, 2009 Marked for Identification at Trial……………………....192 Admitted into Evidence at Trial……….……............…242 Reproduced in Record Extract……………………….1769 Exhibit 70: Email between David S. Schuman and Gervasi Construction dated November 28, 2009 Reproduced in Record Extract……………………….1771 Exhibit 74: Email between David S. Schuman and Gervasi Construction dated December 30, 2009 Reproduced in Record Extract……………………….1772 10. David S. Schuman’s Post-Trial Proposed Findings of Fact and Conclusions of Law filed in the Prince George’s County Circuit Court on October 25, 2011………………………………………………………........1773 11. Greenbelt Homes, Inc.’s Post-Trial Memorandum of Law filed in the Prince George’s County Circuit Court on October 28, 2011……….......1938 12. Prince George’s County Circuit Court oral opinion rendered in open court on November 3, 2011 entering judgment against David S. Schuman………………………………………………………………….….1422 13. Prince George’s County Circuit Court Order dated November 3, 2011 entering judgment against David S. Schuman……....…………….1978

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14 David S. Schuman’s Notice of Appeal filed on November 28, 2011 regarding the Prince George’s County Circuit Court Order dated November 3, 2011 entering judgment against David S. Schuman …………………1980

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compensatory damages, $300,000.00 representing punitive damages and also an amount reflecting reasonable attorney’s fees and court costs. Plaintiff David S. Schuman also respectfully requests that this Honorable Court to enter a declaratory judgment pursuant to Section 3-401, et seq. of the Maryland Code (Courts and Judicial Proceedings Article) finding that Defendant Svetlana Popovic’s and/or Defendant Darko Popovic’s practice of smoking or allowing smoking of cigarettes in their home and/or the adjacent yard is “objectionable conduct” that constitutes a “nuisance” and causes Plaintiff Schuman “annoyance,” “inconvenience,” or “damage” as these terms are defined in Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract at Page 3, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises. In addition, Plaintiff David S. Schuman also respectfully requests that this Honorable Court enter a preliminary and a permanent injunction pursuant to Maryland Rule 15-501, et seq. directing Defendant Svetlana Popovic and/or Defendant Darko Popovic, jointly and severally, to stop smoking tobacco products in their home or the adjacent yard and to prevent third parties from smoking tobacco products in the Defendant Svetlana Popovic’s and/or Defendant Darko Popovic’s home or adjacent yard. Jurisdiction and Venue 1. Jurisdiction is proper in this Honorable Court pursuant to MD. CODE ANN.,

CTS. & JUD. PROC. § 6-102 since Defendant Greenbelt Homes, Inc. is organized under the laws of the State of Maryland and since Defendant Svetlana Popovic and Defendant Darko Popovic are both domiciled in the State of Maryland.

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2.

Venue is proper in this Honorable Court pursuant to MD. CODE ANN., CTS. &

JUD. PROC. § 6-201 since Defendant Greenbelt Homes, Inc. carries on a regular business in Prince George’s County, Maryland and since Defendant Svetlana Popovic and Defendant Darko Popovic both reside in Prince George’s County, Maryland. 3. Plaintiff Schuman’s declaratory judgment claim is proper pursuant to MD. CODE

ANN., CTS. & JUD. PROC. §§ 3-401, et seq. 4. Plaintiff Schuman’s claims for a preliminary injunction and a permanent

injunction are proper pursuant to Maryland Rules 15-501, et seq. Parties 5. Plaintiff David S. Schuman [hereinafter “Plaintiff Schuman”] is an adult resident

of Prince George’s County, Maryland who resides at 11 Ridge Road, Unit Q, Greenbelt, Maryland 20770. 6. Defendant Greenbelt Homes, Inc. is believed to be a Maryland corporation that

acts as the housing cooperative that is the owner of record of the townhouses at issue which are located at 11 Ridge Road in Greenbelt, Maryland, and that establishes and enforces rules and regulations concerning the use and occupancy of these townhouses. 7. Defendant Svetlana Popovic is an adult resident of Prince George’s County,

Maryland who resides at 11 Ridge Road, Unit R, Greenbelt, Maryland 20770. 8. Defendant Darko Popovic is an adult resident of Prince George’s County,

Maryland who resides at 11 Ridge Road, Unit R, Greenbelt, Maryland 20770. 9. Defendant Svetlana Popovic and Defendant Darko Popovic are hereinafter

referred to as “the Popovic Defendants” throughout this Complaint.

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Properties at Issue 10. The properties at issue in this lawsuit are adjoining townhouses located at 11

Ridge Road in Greenbelt Maryland. 11. The photograph below shows the “Service Side” or “front” of Plaintiff Schuman’s

home on the left and the Popovic Defendants’ home on the right.

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12.

The photograph below shows the “Garden Side” or “rear” of Plaintiff Schuman’s

home on the left and the Popovic Defendants’ home on the right.

Subject of Plaintiff Schuman’s Complaint 13. The Popovic Defendants’ practice of smoking tobacco products in their home

and/or adjacent yard on a regular and continuous basis or allowing other people to smoke tobacco products in the Popovic Defendants’ home and/or adjacent yard causes secondhand smoke to migrate into Plaintiff Schuman’s home and yard, causing him serious discomfort, irritation and illness (including headaches, irritated eyes and an irritated nose).

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14.

Plaintiff Schuman has made numerous complaints to the Popovic Defendants

regarding secondhand smoke entering his home, but they have continued to smoke in their home and/or in the adjacent yard. 15. In order to quantify the presence of secondhand smoke entering his home from

the Popovic Defendants’ property, Plaintiff Schuman hired James L. Repace, MSc., Visiting Assistant Clinical Professor, Department of Family and Community Medicine, Tufts University School of Medicine, to measure the level of nicotine in his unit and evaluate the magnitude of the problem. 16. In order for Mr. Repace to measure the level of nicotine in Plaintiff Schuman’s

unit, a nicotine monitor was placed in the unit for 33 days. 17. Thereafter, Mr. Repace was able to determine the average nicotine level in

Plaintiff Schuman’s home, and that Plaintiff Schuman’s average daily secondhand smoke/nicotine exposure produces an excess chronic mortality risk that exceeds by 910 times the de minimis risk level used by the U.S. Environmental Protection Agency for hazardous air pollutants. See Mr. Repace’s Report that is attached to this complaint as Exhibit 1. Background on Defendant Greenbelt Homes, Inc.’s Cooperative Corporation 18. The purpose for which Defendant Greenbelt Homes, Inc.’s cooperative

corporation was organized is to purchase or otherwise acquire, operate, and manage housing projects in Greenbelt on a non-profit basis, and in the interest of and for the housing of its members, to purchase or otherwise acquire memberships or interests in a non-profit cooperative mortgage company organized by the Corporation and the National Consumer Cooperative Bank or its successors for the purpose of making unit loans to members of housing cooperatives, including the Corporation. See Defendant Greenbelt

6 Record Extract Page 53

Homes, Inc.’s bylaws at Article II, Section 1 that is attached to this complaint as Exhibit 2. 19. Membership in Defendant Greenbelt Homes, Inc.’s cooperative corporation “shall

consist of natural persons of good character and financial responsibility who enter into a Mutual Ownership Contract with the Corporation.” See Defendant Greenbelt Homes, Inc.’s bylaws at Article III, Section 1. 20. According to Defendant Greenbelt Homes, Inc.’s “Members’ Handbook,” Cooperative housing is a form of home ownership in which the interest of each purchaser is represented by a Mutual Ownership Contract which creates a membership and share of the ownership in the Corporation, and which gives the member the right to perpetual use of a particular dwelling unit. Prospective purchasers of GHI homes submit an application for membership at the time they select a particular dwelling unit. Their application must be approved by the Board of Directors in order to become a member. Like all privileges, membership entails certain responsibilities; these responsibilities are prescribed by the Mutual Ownership Contract (MOC) and the Bylaws. Two underlying principles govern the use of Corporate controls: equal treatment for all members and decision making based upon the best interest of the majority of members. See Defendant Greenbelt Homes, Inc.’s “Members’ Handbook” at Part I – Member Information, Section I – GHI – A Housing Cooperative, Sub-section A – Legal Basis of GHI, Sub-section 1 – A Membership Cooperative. 21. Defendant Greenbelt Homes, Inc.’s Bylaws established the purpose and powers of the Corporation, its principles of operation, its means of handling business, its method of electing directors to supervise and control the business operations, and its financial controls. The Bylaws insure effective control by the membership by giving each member an equal share (one vote). See Defendant Greenbelt Homes, Inc.’s “Members’ Handbook” at Part I – Member Information, Section I – GHI – A Housing Cooperative, Sub-section A – Legal Basis of GHI, Subsection 3 – The Bylaws of the Corporation.

7 Record Extract Page 54

22.

Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and

Mutual Ownership Contract is the contractual agreement between the member and the Corporation, which establishes the rights and obligations of both. This contract is the legal framework within which each member occupies and enjoys a particular residence for which title is legally held by Greenbelt Homes, Inc. It sets forth the services members can expect from GHI and the policies, which the member must observe while occupying a GHI home. See Defendant Greenbelt Homes, Inc.’s “Members’ Handbook” at Part I – Member Information, Section I – GHI – A Housing Cooperative, Subsection A – Legal Basis of GHI, Sub-section 4 – The Mutual Ownership Contract – The Basic Member Document. 23. Defendant Greenbelt Homes, Inc.’s rules and regulations are binding on all

members by virtue of their obligations to comply with the terms of their Mutual Ownership Contract and all members “agree[] to observe and comply faithfully with such Rules, and agree[] that all persons occupying or visiting in the Premises also shall observe and comply with such Rules.” See Defendant Greenbelt Homes, Inc.’s

“Members’ Handbook” at Part II – Rules and Regulations, Section I – Introduction. See also Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract, Page 4, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (e) – Rules Relating to Occupancy and Care of Premises. 24. Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and

Mutual Ownership Contract provides that “under Maryland law, this Contract creates a legal relationship between GHI and Member as that of landlord and tenant.” See

Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract, Page 1, Background Section, Paragraph (e).

8 Record Extract Page 55

25.

Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and

Mutual Ownership Contract provides that Member and each person named on the occupant list filled with GHI, shall use the Premises and the common property and facilities in conformance with the terms of this Contract, the Bylaws, and the Rules. Use of the Premises or any part of the Premises for any purpose contrary to the interests of GHI or its members as determined by GHI or contrary to law is not authorized. It shall be the duty of Member to respect the comfort and peace of mind of neighbors as well as of all members and tenants of GHI, not to engage in conduct that is objectionable conduct, and to ensure that all persons occupying or visiting in the Premises so act. Member agrees not to do or allow to be done, or keep or allow to be kept upon the Premises, anything that will increase the rate of insurance on the Premises or do or allow to be done any act or thing that shall or may be a nuisance, annoyance, inconvenience, or damage to GHI or its members or tenants, or to the occupants of adjoining dwellings or of the neighborhood. See Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract, Page 3, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises. 26. Plaintiff Schuman and, upon information and belief, the Popovic Defendants, own

shares in Defendant Greenbelt Homes, Inc.’s housing cooperative, which gives them the right to reside in their respective townhouses as well as requires them to abide by the housing cooperative’s rules and regulations concerning the use and occupancy of these townhouses. Plaintiff Schuman’s Compliance with Defendant Greenbelt Homes, Inc.’s Member Complaint Procedures 27. Defendant Greenbelt Homes, Inc. has established formal procedures to resolve

complaints between its members, which begin with the complainant alerting Defendant Greenbelt Homes, Inc.’s management of the complaint. See Defendant Greenbelt

Homes, Inc.’s “Members’ Handbook” at Part II – Rules and Regulations, Section XVII – Member Complaints Procedure.

9 Record Extract Page 56

28.

If Defendant Greenbelt Homes, Inc.’s management is not able to resolve the

complaint, the issue is referred to a “Member Complaints Panel,” which makes recommendations to the Board of Directors for the Board’s final resolution of the complaint. Id. 29. In a letter dated July 20, 2009, Plaintiff Schuman complained to Defendant

Greenbelt Homes, Inc.’s General Manager in conformity with Defendant Greenbelt Homes, Inc.’s “Member Complaints Procedure” that secondhand tobacco smoke originating in the Popovic Defendants’ home and exterior space repeatedly entered Plaintiff Schuman’s home and caused him undue annoyance and inconvenience and exposed him to unhealthy levels of secondhand smoke. 30. Plaintiff Schuman attached a copy of the Repace Report in support of his July 20,

2009 complaint. 31. In a letter dated July 22, 2009, Defendant Greenbelt Homes, Inc.’s General

Manager, Gretchen Overdurff informed Plaintiff Schuman that her staff would review his complaint and respond as soon as possible. 32. In a letter dated September 11, 2009, Defendant Greenbelt Homes, Inc.’s General

Manager, Gretchen Overdurff informed Plaintiff Schuman that his complaint would be heard by the Member Complaints Panel on September 28, 2009. 33. At the September 28, 2009 meeting of the Member Complaints Panel, Plaintiff

Schuman presented evidence of his complaint based upon the Popovic Defendants’ smoking and the Member Complaints Panel referred this matter to the Board of Directors at the Board’s October 1, 2009 meeting.

10 Record Extract Page 57

34.

After the Board of Director’s October 1, 2009 meeting, the President of

Defendant Greenbelt Homes, Inc., Suzette M. Agans, sent Plaintiff Schuman a letter dated October 8, 2009 that states October 8, 2009 Mr. David Schuman 11Q Ridge Road Greenbelt, MD 20770 Thank you for attending the meeting of the Member Complaint Panel on Monday September 28th. The matter was brought to the attention of the full Board at is meeting on Thursday, October 1st in executive session. The Board recognizes your concern and shares your interest in wanting to find a resolution. In reviewing the period of time since this problem began, it was noted that GHI spent a great deal of time and money twelve years ago in sealing all openings between your home and your neighbor’s home at 11R Ridge, as well as the common walls between 11R and 11S Ridge. It appears that GHI’s efforts were successful until your complaint in January 2009, about smoke again infiltrating your home and causing you distress. We ask you to examine whether there are any additional areas that need to be sealed, which may have been missed during the renovations to your home in 2008. You provided the panel with documentation which stated that further sealing or the use of mechanical methods to control the smoke will not prevent it from entering your unit. Based on that documentation and your position, it appears that the only remedy is for your neighbors to cease smoking. Because GHI is not a smoke-free community, the cooperative is not able to request that your neighbors not smoke. This is a difficult situation and it appears there is no solution unless your neighbors are willing to stop smoking, or one party or the other wishes to relocate. During a meeting with your neighbor, your health concerns were discussed and suggestions were made for dealing with this problem. We hope that they will consider the problem more fully and be willing to be part of the solution. At this time, there appears to be nothing further that GHI can do to resolve the problem. Sincerely, GREENBELT HOMES, INC. /s/ Suzette M. Agans, President 11 Record Extract Page 58

FACTS CONCERNING THE HEALTH CONSEQUENCES OF SECONDHAND SMOKE History of Studies Concerning the Health Consequences of Secondhand Smoke 35. The first Surgeon General’s report to systematically review existing evidence on

the health effects of secondhand smoke was published in 1972. See U.S. Department of Health, Education, and Welfare. The Health Consequences of Smoking. A Report of the Surgeon General: 1972. Washington: U.S. Department of Health, Education, and

Welfare, Public Health Service, Health Services and Mental Health Administration, 1972. DHEW Publication No. (HSM) 72-7516. 36. This 1972 report concluded that an atmosphere contaminated with tobacco smoke

causes discomfort in many persons, and levels of carbon monoxide measured in experiments in rooms filled with cigarette smoke could, on occasion, be harmful, particularly for individuals with preexisting diseases such as chronic obstructive pulmonary disease and coronary heart disease. 37. On December 15, 1986, United States Surgeon General C. Everett Koop released

The Health Consequences of Involuntary Smoking. A Report of the Surgeon General, the first Surgeon General’s report to conclude that involuntary exposure to tobacco smoke causes disease in nonsmokers. See U.S. Department of Health and Human

Services. The Health Consequences of Involuntary Smoking. A Report of the Surgeon General. Rockville (MD): U.S. Department of Health and Human Services, Public Health Service, Office on Smoking and Health, 1983. DHHS Publication No. (PHS) 8450204 [hereinafter “the 1986 Surgeon General’s Report”].

12 Record Extract Page 59

38.

The 1986 Surgeon General’s Report stated Cigarette smoking is an addictive behavior, and the individual smoker must decide whether or not to continue that behavior; however, it is evident from the data presented in this volume that the choice to smoke cannot interfere with the nonsmokers’ right to breathe air free of tobacco smoke. The right of smokers to smoke ends where their behavior affects the health and well-being of others; furthermore, it is the smokers’ responsibility to ensure that they do not expose nonsmokers to the potential harmful effects of tobacco smoke. See 1986 Surgeon General’s Report at Preface, page xii.

39.

On June 27, 2006, United States Surgeon General Richard H. Carmona published

a 709 page report entitled, The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General, in order to provide “a detailed review of the epidemiologic evidence on the health effects of involuntary exposure to tobacco smoke” based upon “massive and conclusive scientific evidence” established since the release of the 1986 Surgeon General’s Report. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Coordinating Center for Health Promotion, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006 [hereinafter “the 2006 Surgeon General’s Report”]. 40. The publication of the 2006 Surgeon General’s Report was “motivated by the

persistence of involuntary smoking as a public health problem and the need to evaluate the substantial new evidence reported since 1986.” See 2006 Surgeon General’s Report at page 8. 41. The 2006 Surgeon General’s Report states that the report was prepared by the Office on Smoking and Health, National Center for Chronic Disease Prevention and Health Promotion, Coordinating Center 13 Record Extract Page 60

for Health Promotion, Centers for Disease Control and Prevention (CDC), and the U.S. [Department of Health and Human Services]. Initial chapters were written by 22 experts who were selected because of their knowledge of a particular topic. The contributions of the initial experts were consolidated into 10 major chapters that were then reviewed by more than 40 peer reviewers. The entire manuscript was then sent to more than 30 scientists and experts who reviewed it for its scientific integrity. After each review cycle, the drafts were revised by the scientific editors on the basis of the experts’ comments. Subsequently, the report was reviewed by various institutes and agencies within the U.S. [Department of Health and Human Services]. See 2006 Surgeon General’s Report at page 9. 42. The 2006 Surgeon General’s Report examines the topics of toxicology of secondhand smoke, assessments and prevalence of exposure to secondhand smoke, reproductive and developmental health effects, respiratory effects of exposure to secondhand smoke in children and adults, cancer among adults, cardiovascular diseases, and the control of secondhand smoke exposure. See 2006 Surgeon General’s Report at page 8. Composition of Tobacco Smoke 43. Cigarette smoke “contains both particles and gases generated by the combustion

at high temperatures of tobacco, paper, and additives.” See 2006 Surgeon General’s Report at page 9. 44. There are at least 250 chemicals in secondhand smoke that are known to be toxic

or carcinogenic. See 2006 Surgeon General’s Report at page 29, citing U.S. Department of Health and Human Services. 9th Report on Carcinogens. Research Triangle Park (NC): U.S. Department of Health and Human Services, Public Health Service, National Institutes of Health, National Institute of Environmental Health Sciences, National Toxicology Program, 2000. 45. There are 19 gas-phase and 21 particulate matter compounds in sidestream smoke

that are known to cause pulmonary edema, immune alterations, cardiac arrthythmias, and hepatotoxic and neurologic conditions. See 2006 Surgeon General’s Report at page 29, 14 Record Extract Page 61

citing California Environmental Protection Agency.

Proposed Identification of

Environmental Tobacco Smoke as a Toxic Air Contaminant. Part B: Health Effects. Sacramento (CA): California Environmental Protection Agency, Office of

Environmental Health Hazard Assessment 2005. 46. The United States Environmental Protection Agency has designated secondhand

smoke as a Group A carcinogen. See 2006 Surgeon General’s Report at page 578. See also U.S. Environmental Protection Agency. Respiratory Health Effects of Passive

Smoking: Lung Cancer and Other Disorders. Washington: Environmental Protection Agency, Office of Research and Development, Office of Air and Radiation, 1992. Publication No. EPA/600/006F. 47. In January 2006, the State of California Environmental Protection Agency’s Air

Resources Board formally designated secondhand smoke as a “Toxic Air Contaminant” that “may cause and/or contribute to death or serious illness.” See News Release dated January 26, 2006, published by the California Environmental Protection Agency, Air Resources Board found at http://www.arb.ca.gov/newsrel/nr012606.htm (accessed on January 15, 2010). Definition of “Secondhand Smoke” 48. The term “mainstream smoke” refers to the fumes that a smoker exhales during

the process of smoking tobacco. See 2006 Surgeon General’s Report at page 3. 49. The term “sidestream smoke” refers to the fumes given off by a smoldering

cigarette. See 2006 Surgeon General’s Report at page 3. 50. Sidestream smoke, which is generated at lower temperatures and under somewhat

different combustion conditions than mainstream smoke, tends to have higher

15 Record Extract Page 62

concentrations of many of the toxins found in cigarette smoke. See 2006 Surgeon General’s Report at page 9. 51. The term “secondhand smoke” refers to the mixture of sidestream smoke given

off by a smoldering cigarette and mainstream smoke exhaled by a smoker that a nonsmoker inhales. See 2006 Surgeon General’s Report at page 3. 52. Secondhand smoke is an inherently dynamic mixture that changes in characteristics and concentration with the time since it was formed and the distance it has traveled. The smoke particles change in size and composition as gaseous components are volatilized and moisture content changes; gaseous elements of secondhand smoke may be adsorbed onto materials, and particle concentrations drop with both dilution in the air or environment and impaction on surfaces, including the lungs or on the body. Because of its dynamic nature, a specific quantitative definition of secondhand smoke cannot be offered. See 2006 Surgeon General’s Report at page 9. 53. The 2006 Surgeon General’s Report states that the term “secondhand smoke” is

preferable to the term “environmental tobacco smoke” even though the latter may have been used more frequently in previous reports. The descriptor “secondhand” captures the involuntary nature of the exposure, while “environmental” does not. This report also refers to the inhalation of secondhand smoke as involuntary smoking, acknowledging that most nonsmokers do not want to inhale tobacco smoke. See 2006 Surgeon General’s Report at page 9. 54. Secondhand smoke is “involuntary” since “the exposure occurs as an unavoidable

consequence of breathing in a smoke-filled environment.” See 2006 Surgeon General’s Report at page 3. Secondhand Smoke and Immediate Threat to the Normal Functioning of the Heart, Blood and Vascular Systems 55. The 1986 Surgeon General’s Report did not address the issue of secondhand

smoke and cardiovascular disease since, at that time, only a few studies had been

16 Record Extract Page 63

published on the association of secondhand smoke with cardiovascular disease. See 2006 Surgeon General’s Report at page 509. 56. Since 1986, however, many epidemiologic investigations have been carried out on

secondhand smoke exposure and its relationship to cardiovascular disease and stroke. See 2006 Surgeon General’s Report at page 509. 57. These epidemiological studies have “convincingly” demonstrated that secondhand

smoke is associated with an increased risk for cardiovascular disease. See 2006 Surgeon General’s Report at page 531. 58. The authors of the 2006 Surgeon General’s Report evaluated and reviewed the

reports of many of these investigations in preparing the findings presented in the 2006 report. See 2006 Surgeon General’s Report at page 509. 59. One major finding of the 2006 Surgeon General’s Report is that Secondhand smoke interferes with the normal functioning of the heart, blood, and vascular systems in ways that increase the risk of a cardiac event. For some of these effects (changes in platelet and vascular function), the immediate effects of even short exposures to secondhand smoke appear to be as large as those seen in association with active smoking of one pack of cigarettes a day. . . The large body of evidence documenting that secondhand smoke produces substantial and rapid effects on the cardiovascular system demonstrates that even a brief exposure to secondhand smoke has adverse consequences for the heart, blood and blood vessels. See 2006 Surgeon General’s Report at page 64. 60. Despite estimated exposure levels equivalent to smoking only one-half of one

cigarette per day, the estimated increase in risk of cardiovascular disease from exposure to secondhand smoke is 25 to 30 percent above that of unexposed persons. See 2006 Surgeon General’s Report at page 519.

17 Record Extract Page 64

61.

The evidence is sufficient to infer a causal relationship between exposure to

secondhand smoke and increased risks of coronary heart disease morbidity and mortality among both men and women. See 2006 Surgeon General’s Report at page 532. 62. Persons who already have heart disease are at especially high risk of suffering

adverse effects from breathing secondhand smoke, and should take special precautions to avoid even brief exposures. See 2006 Surgeon General’s Report at page 576-77, citing Pechacek TF, Babb S. Commentary: How acute and reversible are the cardiovascular risks of secondhand smoke. British Medical Journal 2004; 328 (7446): 980-3. 63. A 2004 commentary published in the British Medical Journal and cited in the

2006 Surgeon General’s Report reviewed recent evidence on the acute cardiovascular effects of even brief secondhand smoke exposures and suggested that clinicians should advise patients who already have or are at special risk for heart disease to avoid indoor environments where there are likely to be smokers. See 2006 Surgeon General’s Report at page 576-77, citing Pechacek TF, Babb S. Commentary: How acute and reversible are the cardiovascular risks of secondhand smoke? British Medical Journal, 2004; 328 (7446): 980-3. Conclusion to the Surgeon General’s 2006 Report 64. The conclusion to the 2006 Surgeon General’s Report, entitled “A Vision for the

Future” states This country has experienced a substantial reduction of involuntary exposure to secondhand tobacco smoke in recent decades. Significant reductions in the rate of smoking among adults began even earlier. Consequently, about 80 percent of adults are now nonsmokers, and many adults and children can live their daily lives without being exposed to secondhand smoke. Nevertheless, involuntary exposure to secondhand smoke remains a serious public health hazard.

18 Record Extract Page 65

This report documents the mounting and now substantial evidence characterizing the health risks caused by exposure to secondhand smoke. Multiple major reviews of the evidence have concluded that secondhand smoke is a known human carcinogen, and that exposure to secondhand smoke causes adverse effects, particularly on the cardiovascular system and the respiratory tract and on the health of those exposed, children as well as adults. . . . Clearly, the social norms regarding secondhand smoke have changed dramatically, leading to widespread support over the past 30 years for a society free of involuntary exposures to tobacco smoke. In the first half of the twentieth century smoking was permitted in almost all public places, including elevators and all types of public transportation. At the time of the 1964 Surgeon General’s report on smoking and health, many physicians were still smokers, and the tables in U.S. Public Health Service (PHS) meeting rooms had PHS ashtrays on them. A thick, smoky haze was an accepted part of presentations at large meetings, even at medical conferences and in the hospital environment. . . . The ever-increasing momentum for smoke-free indoor environments has been driven by scientific evidence on the health risks of involuntary exposure to secondhand smoke. This new Surgeon General’s report is based on a far larger body of evidence than was available in 1986. The evidence reviewed in these 665 pages confirms the findings of the 1986 report and adds new causal conclusions. . . . Cardiovascular effects of even short exposures to secondhand smoke are readily measurable, and the risks for cardiovascular disease from involuntary smoking appear to be about 50 percent less than the risks for active smokers. Although the risks from secondhand smoke exposures are larger than anticipated, research on the mechanisms by which tobacco smoke exposure affects the cardiovascular system supports the plausibility of the findings of epidemiologic studies (the 1986 report did not address cardiovascular disease). This 2006 report also reviews the evidence on the multiple mechanisms by which secondhand smoke injures the respiratory tract and causes sudden infant death syndrome. Since 1986, the attitude of the public toward and the social norms around secondhand smoke exposure have changed dramatically to reflect a growing viewpoint that involuntary exposure of nonsmokers to secondhand smoke is unacceptable. As a result, increasingly strict public policies to control involuntary exposure to secondhand smoke have been put in place. The need for restrictions on smoking in enclosed public places is now widely accepted in the United States. A growing number of communities, counties, and states are requiring smoke-free environments

19 Record Extract Page 66

for nearly all enclosed public places, including all private worksites, restaurants, bars and casinos. . . . Research reviewed in this report indicates that policies creating completely smoke-free environments are the most economical and efficient approaches to providing this protection. . . . When this series of reports began in 1964, the majority of men and a substantial proportion of women were smokers, and most nonsmokers inevitably must have been involuntary smokers. With the release of the 1986 report, Surgeon General Koop noted that ‘the right of smokers to smoke ends where their behavior affects the health and well-being of others.’ As understanding increases regarding health consequences from even brief exposures to secondhand smoke, it becomes even clearer that the health of nonsmokers overall, and particularly the health of children, individuals with existing heart and lung problems, and other vulnerable populations, requires a higher priority and greater protection. Together, this report and the 2004 report of the Surgeon General, The Health Consequences of Smoking, document the extraordinary threat to the nation’s health from active and involuntary smoking. The recent reductions in exposures of nonsmokers to secondhand smoke represent significant progress, but involuntary exposures persist in many settings and environments. More evidence is needed to understand why this progress has not been equally shared across all populations and in all parts of this nation. Some states (California, Connecticut, Delaware, Maine, Massachusetts, New York, Rhode Island, and Washington) have met the Healthy People 2010 objectives that protect against involuntary exposures to secondhand smoke through recommended policies, regulations, and laws, while many other parts of this nation have not. Evidence presented in this report suggests that these disparities in levels of protection can be reduced or eliminated. Sustained progress toward a society free of involuntary exposures to secondhand smoke should remain a national public health priority. See 2006 Surgeon General’s Report at pages 66769. HVAC Systems Cannot Fully Control Exposures to Secondhand Smoke 65. Current HVAC systems cannot fully control exposures to secondhand smoke

unless a complete and total smoking ban is enforced. See 2006 Surgeon General’s Report at page 92.

20 Record Extract Page 67

66.

In a 2008 update to its 2005 position paper on secondhand smoke that was cited in

the 2006 Surgeon General’s Report, the American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE) concluded that * It is the consensus of the medical community and its cognizant authorities that ETS is a health risk, causing lung cancer and heart disease in adults, and exacerbation of asthma, lower respiratory illnesses and other adverse effects on the respiratory health of children. * At present, the only means of effectively eliminating health risk associated with indoor exposure is to ban smoking activity..   * Although complete separation and isolation of smoking rooms can control ETS exposure in non-smoking spaces in the same building, adverse health effects for the occupants of the smoking room cannot be controlled by ventilation. • No other engineering approaches, including current and advanced dilution ventilation or air cleaning technologies, have been demonstrated or should be relied upon to control health risks from ETS exposure in spaces where smoking occurs. See American Society of Heating, Refrigerating and Air-Conditioning Engineers. ASHRAE Position Document on Environmental Tobacco Smoke. Atlanta: American Society of Heating, Refrigerating and AirConditioning Engineers, 2009. See also American Society of Heating, Refrigerating and Air-Conditioning Engineers. Environmental Tobacco Smoke: Position Document. Atlanta: American Society of Heating, Refrigerating and Air-Conditioning Engineers, 2005. See also 2006 Surgeon General’s Report at page 638. 67. In fact, the operation of a heating, ventilating and air conditioning system can See 2006 Surgeon

actually distribute secondhand smoke throughout a building. General’s Report at page 92. Positive Effect of Smoking Bans 68.

Levels of airborne particulate matter in restaurants, bars and other hospitality

venues and levels of secondhand smoke exposure among non-smoking hospitality employees decrease substantially and rapidly after implementation of laws that prohibit 21 Record Extract Page 68

smoking in indoor workplaces and public places. See 2006 Surgeon General’s Report at page 609. See also July 20, 2007 edition of Morbidity and Mortality Weekly Report, Centers for Disease Control and Prevention, found at

http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5628a2.htm (accessed on January 15, 2010) and Repace J. Respirable particles and carcinogens in the air of Delaware Journal of Occupational and

hospitality venues before and after a smoking ban. Environmental Medicine 2004b; 46(9): 887-905. 69.

A study that assessed air nicotine concentrations before and after implementation

of a workplace smoking policy showed a 98 percent reduction in nicotine concentrations following a smokefree policy implementation. See 2006 Surgeon General’s Report at page 609. See also Vaughn WM, Hammond SK. Impact of “designated smoking area” policy on nicotine vapor and particle concentrations in a modern office building. Journal of the Air & Waste Management Association 1990; 40(7): 1012-7. 70. Another study by the New York State Department of Health measured levels of

cotinine1 in saliva among non-smokers both before and after implementation of the 2003 New York State ban on smoking in indoor workplaces and other public places. See July 20, 2007 edition of Morbidity and Mortality Weekly Report, Centers for Disease Control and Prevention, found at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5628a2.htm (accessed on December 10, 2008). 71. The New York State Department of Health report concluded that saliva cotinine

levels in non-smokers decreased by 47.4% after the New York State smoking ban took
1

Cotinine is a metabolite, a product formed by the body, from nicotine. Levels of cotinine in blood indicate the amount of exposure a person has had to tobacco smoke. Third National Report on Human Exposure to Environmental Chemicals - Spotlight on Cotinine, Centers for Disease Control and Prevention, NCEH Pub. 05-0664, July 2005. 22 Record Extract Page 69

effect, and thus, “comprehensive smoking bans can reduce [secondhand smoke] exposure among nonsmokers. See July 20, 2007 edition of Morbidity and Mortality Weekly Report, Centers for Disease Control and Prevention, found at

http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5628a2.htm (accessed on December 10, 2008). Laws Protecting the Public from the Dangers of Secondhand Smoke 72. Healthy People 2010, a directive of the U.S. Department of Health and Human

Services calls for all states to adopt laws making enclosed workplaces and public places smoke free. See 2006 Surgeon General’s Report at page 582. See also U.S. Department of Health and Human Services. Healthy People 2010: Understanding and Improving Health. Washington: U.S. Government Printing Office, 2000a. 73. A Surgeon General’s Report that was published in 2000 concluded that “smoking

bans are the most effective method for reducing ETS exposure,” and that “[o]ptimal protection of nonsmokers and smokers requires a smokefree environment.” See 2006 Surgeon General’s Report at page 609. See also U.S. Department of Health and Human Services. Reducing Tobacco Use. A Report of the Surgeon General. Atlanta: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2000c:198 at page 261. 74. The Surgeon General’s 2006 Report found that “the tobacco industry has

responded to local clean indoor air policy efforts by working with hospitality and gaming interests and other organizations to prevent local ordinances from being adopted and to

23 Record Extract Page 70

attempt to reverse them once they have been enacted.” See 2006 Surgeon General’s Report at page 581. 75. Despite the tobacco and hospitality industries’ efforts to block laws to protect the

public from the dangers of secondhand smoke, many states, districts and territories have enacted smokefree workplace laws that prohibit smoking in bars and restaurants. See 2006 Surgeon General’s Report at page 582. 76. In total, over 74% of the American public is protected from the dangers of See Summary of 100%

secondhand smoke in workplaces, bars and/or restaurants.

Smokefree State Laws and Population Protected by 100% U.S. Smokefree Laws, Americans for Nonsmokers’ Rights, January 5, 2010, http://www.no-

smoke.org/pdf/SummaryUSPopList.pdf (accessed on January 15, 2010). Outdoor Smoking Bans 77. More than 575 local jurisdictions have passed ordinances banning smoking in

outdoor areas. See 2006 Surgeon General’s Report at page 633. 78. These outdoor smoking bans “reflect a growing movement toward banning

smoking in outdoor public places.” See 2006 Surgeon General’s Report at page 633. There is No Risk-Free Level of Exposure of Secondhand Smoke 79. The scientific evidence indicates that there is no risk-free level of exposure to

secondhand smoke. See 2006 Surgeon General’s Report at page 11. 80. Eliminating smoking in indoor spaces fully protects nonsmokers from exposure to

secondhand smoke. See 2006 Surgeon General’s Report at page 11.

24 Record Extract Page 71

81.

Separating smokers from nonsmokers, cleaning the air, and ventilating buildings

cannot eliminate exposures of nonsmokers to secondhand smoke. See 2006 Surgeon General’s Report at page 11. Count I – Breach of Contract (Popovic Defendants) 82. The allegations contained in paragraphs 1-81 of this complaint are incorporated

herein as if fully stated. 83. At all relevant times, the Popovic Defendants owed Plaintiff Schuman a

contractual obligation to abide by Defendant Greenbelt Homes, Inc.’s rules and regulations concerning the use and occupancy of their townhouse arising under their “Cooperative Housing Proprietary Lease and Mutual Ownership Contract” with Defendant Greenbelt Homes, Inc. 84. In smoking or allowing the smoking of cigarettes in their home and/or the

adjacent yard, the Popovic Defendants breached the contractual obligation owed to Plaintiff Schuman since secondhand smoke from these cigarettes migrated into Plaintiff Schuman’s home and yard and the Popovic Defendants’ practice of smoking or allowing smoking in their home and/or the adjacent yard is “objectionable conduct” that constitutes a “nuisance” and causes Plaintiff Schuman “annoyance,” “inconvenience,” or “damage” as these terms are defined in Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract at Page 3, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises. 85. As a direct and proximate result of the Popovic Defendants’ practice of smoking

or allowing smoking of cigarettes in their home and/or the adjacent yard, Plaintiff 25 Record Extract Page 72

Schuman has suffered damages, including, but not limited to discomfort, irritation and illness, as well as, a material diminishment of the fair market value of his home by seriously interfering with Plaintiff Schuman’s ordinary comfort and enjoyment of his home. 86. Moreover, the Popovic Defendants’ practice of smoking or allowing smoking of

cigarettes in their home and/or the adjacent yard is ongoing and the Popovic Defendants have not shown any evidence that they will stop smoking or allowing smoking in their home and/or the adjacent yard in the future. 87. Plaintiff Schuman is a third party beneficiary of the Popovic Defendants’

Cooperative Housing Proprietary Lease and Mutual Ownership Contract with Defendant Greenbelt Homes, Inc. because this contract evidences an intent to benefit Plaintiff Schuman. 88. Because Plaintiff Schuman is a third party beneficiary of the Popovic Defendants’

Cooperative Housing Proprietary Lease and Mutual Ownership Contract with Defendant Greenbelt Homes, Inc., Plaintiff Schuman is entitled to his legal fees and expenses incurred in the filing of this suit pursuant to Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract at Page 8, Contract Terms and Conditions Section, Paragraph 9 – Termination; Effect of Termination, Section (c) (1) – Failure to Comply with Contract, Rules , or Bylaws and Section (d) – Effect of Termination of Contract. WHEREFORE, Plaintiff David S. Schuman respectfully requests that this Honorable Court enter a judgment order in his favor against Defendant Svetlana Popovic and Defendant Darko Popovic, jointly and severally, reflecting the amount of

26 Record Extract Page 73

$300,000.00 representing compensatory damages and also an amount reflecting reasonable attorney’s fees and court costs. Count II – Breach of Contract – Breach of Implied Covenant of Quiet Enjoyment (Defendant Greenbelt Homes, Inc.) 89. The allegations contained in paragraphs 1-81 of this complaint are incorporated

herein as if fully stated. 90. At all relevant times, Defendant Greenbelt Homes, Inc. owed Plaintiff Schuman a

contractual obligation implied under the covenant of quiet enjoyment arising from their “Cooperative Housing Proprietary Lease and Mutual Ownership Contract” with Plaintiff Schuman to insulate Plaintiff Schuman against acts or omissions that interfere with Plaintiff Schuman’s use and possession of his townhouse. 91. In failing to take action to prevent the migration of secondhand smoke originating

from the Popovic Defendants’ home and/or adjacent yard to Plaintiff Schuman’s home and/or adjacent yard, Defendant Greenbelt Homes, Inc. breached its contract with Plaintiff Schuman since secondhand smoke originating from the Popovic Defendants’ home and/or adjacent yard interfered with Plaintiff Schuman’s right to the use and enjoyment of his townhouse since the Popovic Defendants’ practice of smoking or allowing smoking in their home and/or the adjacent yard constitutes a “nuisance” and causes Plaintiff Schuman “annoyance,” “inconvenience,” or “damage” as these terms are defined in Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract at Page 3, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises. 92. As a direct and proximate result of Defendant Greenbelt Homes, Inc.’s breach of

its contract, Plaintiff Schuman has suffered damages, including, but not limited to 27 Record Extract Page 74

discomfort, irritation and illness, as well as, a material diminishment of the fair market value of his home by seriously interfering with Plaintiff Schuman’s ordinary comfort and enjoyment of his home. 93. Not only is Popovic Defendants’ practice of smoking or allowing smoking of

cigarettes in their home and/or the adjacent yard ongoing since the Popovic Defendants have not shown any evidence that they will stop smoking or allowing smoking in their home and/or the adjacent yard in the future, but Defendant Greenbelt Homes, Inc.’s refusal to take any action to prevent the migration of secondhand smoke originating from the Popovic Defendants’ home and/or adjacent yard to Plaintiff Schuman’s home and/or adjacent yard is also ongoing since Defendant Greenbelt Homes, Inc. has not shown any evidence that they will take any such action in the future. WHEREFORE, Plaintiff David S. Schuman respectfully requests that this Honorable Court enter a judgment order in his favor against Defendant Greenbelt Homes, Inc. reflecting the amount of $300,000.00 representing compensatory damages and also an amount reflecting reasonable attorney’s fees and court costs. Count III – Trespass (Popovic Defendants) 94. The allegations contained in paragraphs 1-81 of this complaint are incorporated

herein as if fully stated. 95. At all relevant times, the Popovic Defendants practice of smoking or allowing the

smoking of cigarettes in their home and/or the adjacent yard has resulted in a trespass or an unauthorized entry of secondhand smoke into Plaintiff Schuman’s home and/or adjacent yard.

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96.

This trespass or unauthorized entry of secondhand smoke originating from the

Popovic Defendants’ home and/or adjacent yard to Plaintiff Schuman’s home and/or adjacent yard represents an intentional or negligent intrusion into Plaintiff Schuman’s home and/or adjacent yard. 97. The trespass or unauthorized entry of secondhand smoke originating from the

Popovic Defendants’ home and/or adjacent yard to Plaintiff Schuman’s home and/or adjacent yard is “objectionable conduct” that constitutes a “nuisance” and causes Plaintiff Schuman “annoyance,” “inconvenience,” or “damage” as these terms are defined in Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract at Page 3, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises. 98. As a direct and proximate result of the trespass or unauthorized entry of

secondhand smoke originating from the Popovic Defendants’ home and/or adjacent yard to Plaintiff Schuman’s home and/or adjacent yard, Plaintiff Schuman has suffered damages, including, but not limited to discomfort, irritation and illness, as well as, a material diminishment of the fair market value of his home by seriously interfering with Plaintiff Schuman’s ordinary comfort and enjoyment of his home. 99. The trespass or unauthorized entry of secondhand smoke originating from the

Popovic Defendants’ home and/or adjacent yard to Plaintiff Schuman’s home and/or adjacent yard is “heinous” conduct undertaken by the Popovic Defendants with actual malice toward Plaintiff Schuman since this is conduct characterized by evil motive, intent to injure, ill will, fraud and/or knowing and deliberate wrongdoing since the Popovic

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Defendants have actual knowledge of the serious health hazards to Plaintiff Schuman that their conduct presents. 100. Moreover, trespass or unauthorized entry of secondhand smoke originating from

the Popovic Defendants’ home and/or adjacent yard to Plaintiff Schuman’s home and/or adjacent yard is ongoing and the Popovic Defendants have not shown any evidence that they will stop this trespass or unauthorized entry of secondhand smoke in the future by stopping smoking or allowing smoking in their home and/or the adjacent yard. WHEREFORE, Plaintiff David S. Schuman respectfully requests that this Honorable Court enter a judgment order in his favor against Defendant Svetlana Popovic and Defendant Darko Popovic, jointly and severally, reflecting the amount of $300,000.00 representing compensatory damages, $300,000.00 representing punitive damages and also an amount reflecting reasonable attorney’s fees and court costs. Count IV – Nuisance (Popovic Defendants) 101. The allegations contained in paragraphs 1-81 of this complaint are incorporated

herein as if fully stated. 102. At all relevant times, the Popovic Defendants practice of smoking or allowing the

smoking of cigarettes in their home and/or the adjacent yard that has the effect of dispatching secondhand smoke into Plaintiff Schuman’s home and/or adjacent yard has resulted in a nuisance or an invasion of Plaintiff Schuman’s interest in the private use and enjoyment of his home and adjacent yard. 103. The Popovic Defendants’ invasion of Plaintiff Schuman’s interest in the private

use and enjoyment of his home and adjacent yard by smoking or allowing the smoking of cigarettes in their home and/or the adjacent yard that has the effect of dispatching 30 Record Extract Page 77

secondhand smoke into Plaintiff Schuman’s home and/or adjacent yard was both substantial and unreasonable since this interference is of such a character as to diminish materially the value of Plaintiff Schuman’s home as a dwelling and seriously interferes with the ordinary comfort and enjoyment of Plaintiff Schuman’s home. 104. The Popovic Defendants’ invasion of Plaintiff Schuman’s interest in the private

use and enjoyment of his home and adjacent yard by smoking or allowing the smoking of cigarettes in their home and/or the adjacent yard that has the effect of dispatching secondhand smoke into Plaintiff Schuman’s home and/or adjacent yard not only causes significant harm to Plaintiff Schuman, but would also cause significant harm to normal persons in the community in similar situations. 105. The Popovic Defendants’ invasion of Plaintiff Schuman’s interest in the private

use and enjoyment of his home and adjacent yard by smoking or allowing the smoking of cigarettes in their home and/or the adjacent yard that has the effect of dispatching secondhand smoke into Plaintiff Schuman’s home and/or adjacent yard is “objectionable conduct” that constitutes a “nuisance” and causes Plaintiff Schuman “annoyance,” “inconvenience,” or “damage” as these terms are defined in Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract at Page 3, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises. 106. As a direct and proximate result of the Popovic Defendants’ invasion of Plaintiff

Schuman’s interest in the private use and enjoyment of his home and adjacent yard by smoking or allowing the smoking of cigarettes in their home and/or the adjacent yard, Plaintiff Schuman has suffered damages, including, but not limited to discomfort,

31 Record Extract Page 78

irritation and illness, as well as, a material diminishment of the fair market value of his home by seriously interfering with Plaintiff Schuman’s ordinary comfort and enjoyment of his home. 107. The Popovic Defendants’ invasion of Plaintiff Schuman’s interest in the private

use and enjoyment of his home and adjacent yard by smoking or allowing the smoking of cigarettes in their home and/or the adjacent yard is “heinous” conduct undertaken by the Popovic Defendants with actual malice toward Plaintiff Schuman since this is conduct characterized by evil motive, intent to injure, ill will, fraud and/or knowing and deliberate wrongdoing since the Popovic Defendants have actual knowledge of the serious health hazards to Plaintiff Schuman that their conduct presents. 108. Moreover, the Popovic Defendants’ invasion of Plaintiff Schuman’s interest in the

private use and enjoyment of his home and adjacent yard by smoking or allowing the smoking of cigarettes in their home and/or the adjacent yard is ongoing and the Popovic Defendants have not shown any evidence that they will stop this invasion of Plaintiff Schuman’s interest in the private use and enjoyment of his home and adjacent yard by smoking or allowing the smoking of cigarettes in their home and/or the adjacent yard in the future by stopping smoking or allowing smoking in their home and/or the adjacent yard. WHEREFORE, Plaintiff David S. Schuman respectfully requests that this Honorable Court enter a judgment order in his favor against Defendant Svetlana Popovic and Defendant Darko Popovic, jointly and severally, reflecting the amount of $300,000.00 representing compensatory damages, $300,000.00 representing punitive damages and also an amount reflecting reasonable attorney’s fees and court costs.

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Count V – Negligence (Popovic Defendants) 109. The allegations contained in paragraphs 1-81 of this complaint are incorporated

herein as if fully stated. 110. At all relevant times, the Popovic Defendants owed Plaintiff Schuman a duty to

protect him from injury. 111. In smoking or allowing the smoking of cigarettes in their home and/or the

adjacent yard, the Popovic Defendants breached the duty they owed to Plaintiff Schuman since secondhand smoke from these cigarettes migrated into Plaintiff Schuman’s home and yard. 112. As a direct and proximate result of the Popovic Defendants’ breach of the duty

they owed to Plaintiff Schuman, Plaintiff Schuman has suffered actual damages, including, but not limited to discomfort, irritation and illness, as well as, a material diminishment of the fair market value of his home by seriously interfering with Plaintiff Schuman’s ordinary comfort and enjoyment of his home. 113. The Popovic Defendants’ practice of smoking or allowing the smoking of

cigarettes in their home and/or the adjacent yard is “heinous” conduct undertaken by the Popovic Defendants with actual malice toward Plaintiff Schuman since this is conduct characterized by evil motive, intent to injure, ill will, fraud and/or knowing and deliberate wrongdoing since the Popovic Defendants have actual knowledge of the serious health hazards to Plaintiff Schuman that their conduct presents. 114. Moreover, the Popovic Defendants’ practice of smoking or allowing smoking of

cigarettes in their home and/or the adjacent yard is ongoing and the Popovic Defendants

33 Record Extract Page 80

have not shown any evidence that they will stop smoking or allowing smoking in their home and/or the adjacent yard in the future. WHEREFORE, Plaintiff David S. Schuman respectfully requests that this Honorable Court enter a judgment order in his favor against Defendant Svetlana Popovic and Defendant Darko Popovic, jointly and severally, reflecting the amount of $300,000.00 representing compensatory damages, $300,000.00 representing punitive damages and also an amount reflecting reasonable attorney’s fees and court costs. Count VI – Negligence (Defendant Greenbelt Homes, Inc.) 115. The allegations contained in paragraphs 1-81 of this complaint are incorporated

herein as if fully stated. 116. At all relevant times, Defendant Greenbelt Homes, Inc. owed Plaintiff Schuman a

duty to protect him from injury. 117. In failing to take action to prevent the migration of secondhand smoke originating

from the Popovic Defendants’ home and/or adjacent yard to Plaintiff Schuman’s home and/or adjacent yard, Defendant Greenbelt Homes, Inc. breached the duty it owed to Plaintiff Schuman since secondhand smoke originating from the Popovic Defendants’ home and/or adjacent yard migrated into Plaintiff Schuman’s home and yard. 118. As a direct and proximate result of Defendant Greenbelt Homes, Inc.’s breach of

the duty it owed to Plaintiff Schuman, Plaintiff Schuman has suffered actual damages, including, but not limited to discomfort, irritation and illness, as well as, a material diminishment of the fair market value of his home by seriously interfering with Plaintiff Schuman’s ordinary comfort and enjoyment of his home.

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119.

Defendant Greenbelt Homes, Inc.’s failure to take action to prevent the migration

of secondhand smoke originating from the Popovic Defendants’ home and/or adjacent yard to Plaintiff Schuman’s home and/or adjacent yard is “heinous” conduct undertaken by Defendant Greenbelt Homes, Inc. with actual malice toward Plaintiff Schuman since this is conduct characterized by evil motive, intent to injure, ill will, fraud and/or knowing and deliberate wrongdoing since Defendant Greenbelt Homes, Inc. has actual knowledge of the serious health hazards to Plaintiff Schuman that its conduct presents. 120. Not only is Popovic Defendants’ practice of smoking or allowing smoking of

cigarettes in their home and/or the adjacent yard ongoing since the Popovic Defendants have not shown any evidence that they will stop smoking or allowing smoking in their home and/or the adjacent yard in the future, but Defendant Greenbelt Homes, Inc.’s refusal to take any action necessary to prevent the migration of secondhand smoke originating from the Popovic Defendants’ home and/or adjacent yard to Plaintiff Schuman’s home and/or adjacent yard is also ongoing since Defendant Greenbelt Homes, Inc. has not shown any evidence that they will take any such action in the future. WHEREFORE, Plaintiff David S. Schuman respectfully requests that this Honorable Court enter a judgment order in his favor against Defendant Greenbelt Homes, Inc. reflecting the amount of $300,000.00 representing compensatory damages, $300,000.00 representing punitive damages and also an amount reflecting reasonable attorney’s fees and court costs. Count VII – Declaratory Judgment (All Defendants) 121. The allegations contained in all preceding paragraphs of this complaint are

incorporated herein as if fully stated. 35 Record Extract Page 82

122.

Plaintiff Schuman respectfully requests that this Honorable Court enter a

declaratory judgment pursuant to Section 3-401, et seq. of the Maryland Code (Courts and Judicial Proceedings Article) that the Popovic Defendants’ practice of smoking or allowing smoking of cigarettes in their home and/or the adjacent yard is “objectionable conduct” that constitutes a “nuisance” and causes Plaintiff Schuman “annoyance,” “inconvenience,” or “damage” as these terms are defined in Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract at Page 3, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises. WHEREFORE, Plaintiff David S. Schuman respectfully requests that this Honorable Court enter a declaratory judgment order in his favor against Defendant Greenbelt Homes, Inc., Defendant Svetlana Popovic and Defendant Darko Popovic, jointly and severally, finding that Defendant Svetlana Popovic’s and/or Defendant Darko Popovic’s practice of smoking or allowing smoking of cigarettes in their home and/or the adjacent yard is “objectionable conduct” that constitutes a “nuisance” and causes Plaintiff Schuman “annoyance,” “inconvenience,” or “damage” as these terms are defined in Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract at Page 3, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises, as well as ordering Defendant Greenbelt Homes, Inc., Defendant Svetlana Popovic and Defendant Darko Popovic, jointly and severally, to pay Plaintiff David S. Schuman his costs incurred in bringing this declaratory judgment action.

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Count VIII – Preliminary Injunction (Popovic Defendants) 123. The allegations contained in all preceding paragraphs of this complaint are

incorporated herein as if fully stated. 124. Plaintiff Schuman respectfully requests that this Honorable Court enter a

preliminary injunction pursuant to Maryland Rule 15-501, et seq. directing the Popovic Defendants to stop smoking tobacco products in their home or the adjacent yard and to prevent third parties from smoking tobacco products in the Popovic Defendants’ home or adjacent yard. 125. In addition, Plaintiff Schuman respectfully requests that this Honorable Court

order that trial on the merits be advanced and consolidated with the preliminary injunction hearing pursuant to Maryland Rule 15-505 (b). WHEREFORE, Plaintiff David S. Schuman respectfully requests that this Honorable Court enter a preliminary injunction order directing Defendant Svetlana Popovic and Defendant Darko Popovic, jointly and severally, to stop smoking tobacco products in their home or the adjacent yard and to prevent third parties from smoking tobacco products in the Popovic Defendants’ home or adjacent yard, as well as an order directing that trial on the merits be advanced and consolidated with the preliminary injunction hearing pursuant to Maryland Rule 15-505 (b) and directing Defendant Svetlana Popovic and Defendant Darko Popovic, jointly and severally, to pay Plaintiff David S. Schuman his costs incurred in bringing this action.

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Record Extract Page 85

IN THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY MARYLAND Civil Division DAVID S. SCHUMAN Plaintiff, vs. GREENBELT HOMES, INC., et al. Defendants. ) ) ) ) ) ) ) ) )

Case Number: CAL-10-6047

PLAINTIFF DAVID S. SCHUMAN’S MOTION FOR A PRELIMINARY AND A PERMANENT INJUNCTION AND MOTION FOR A DECLARATORY JUDGMENT Oral Hearing Requested For the reasons set forth in this motion, Plaintiff David S. Schuman respectfully requests that this Honorable Court grant this motion for a preliminary and a permanent injunction pursuant to Maryland Rule 15-501, et seq. directing Defendant Svetlana Popovic and/or Defendant Darko Popovic, jointly and severally, to stop smoking tobacco products in their home or the adjacent yard and to prevent third parties from smoking tobacco products in the Defendant Svetlana Popovic’s and/or Defendant Darko Popovic’s home or adjacent yard and for a declaratory judgment declaratory judgment pursuant to Section 3-401, et seq. of the Maryland Code (Courts and Judicial Proceedings Article) finding that Defendant Svetlana Popovic’s and/or Defendant Darko Popovic’s practice of smoking or allowing smoking of cigarettes in their home and/or the adjacent yard is “objectionable conduct” that constitutes a “nuisance” and causes Plaintiff Schuman “annoyance,” “inconvenience,” or “damage” as these terms are defined in Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership

Record Extract Page 86

Contract at Page 3, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises: General Background 1. Plaintiff Schuman, on the one hand, and Defendant Svetlana Popovic and/or

Defendant Darko Popovic [hereinafter “the Popovic Defendants’], on the other hand, are next-door neighbors in the townhouse community governed by Defendant Greenbelt Homes, Inc. 2. The instant action involves allegations that secondhand smoke originating in the

Popovic Defendants’ home and/or adjacent yard drifts into Plaintiff Schuman’s home and/or adjacent yard and causes Plaintiff Schuman “annoyance,” “inconvenience,” or “damage” as these terms are defined in Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract at Page 3, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises. Subject of Plaintiff Schuman’s Complaint 3. The Popovic Defendants’ practice of smoking tobacco products in their home

and/or adjacent yard on a regular and continuous basis or allowing other people to smoke tobacco products in the Popovic Defendants’ home and/or adjacent yard causes secondhand smoke to migrate into Plaintiff Schuman’s home and yard, causing him serious discomfort, irritation and illness (including headaches, irritated eyes and an irritated nose).

2 Record Extract Page 87

4.

Plaintiff Schuman has made numerous complaints to the Popovic Defendants

regarding secondhand smoke entering his home, but they have continued to smoke in their home and/or in the adjacent yard. 5. In order to quantify the presence of secondhand smoke entering his home from

the Popovic Defendants’ property, Plaintiff Schuman hired James L. Repace, MSc., Visiting Assistant Clinical Professor, Department of Family and Community Medicine, Tufts University School of Medicine, to measure the level of nicotine in his unit and evaluate the magnitude of the problem. 6. In order for Mr. Repace to measure the level of nicotine in Plaintiff Schuman’s

unit, a nicotine monitor was placed in the unit for 33 days. 7. Thereafter, Mr. Repace was able to determine the average nicotine level in

Plaintiff Schuman’s home, and that Plaintiff Schuman’s average daily secondhand smoke/nicotine exposure produces an excess chronic mortality risk that exceeds by 910 times the de minimis risk level used by the U.S. Environmental Protection Agency for hazardous air pollutants. See Mr. Repace’s Report that was attached to Plaintiff

Schuman’s complaint as Exhibit 1. Background on Defendant Greenbelt Homes, Inc.’s Cooperative Corporation 8. The purpose for which Defendant Greenbelt Homes, Inc.’s cooperative

corporation was organized is to purchase or otherwise acquire, operate, and manage housing projects in Greenbelt on a non-profit basis, and in the interest of and for the housing of its members, to purchase or otherwise acquire memberships or interests in a non-profit cooperative mortgage company organized by the Corporation and the National Consumer Cooperative Bank or its successors for the purpose of making unit loans to members of housing cooperatives, including the Corporation. See Defendant Greenbelt

3 Record Extract Page 88

Homes, Inc.’s bylaws at Article II, Section 1 that were attached to Plaintiff Schuman’s complaint as Exhibit 2. 9. Membership in Defendant Greenbelt Homes, Inc.’s cooperative corporation “shall

consist of natural persons of good character and financial responsibility who enter into a Mutual Ownership Contract with the Corporation.” See Defendant Greenbelt Homes, Inc.’s bylaws at Article III, Section 1. 10. According to Defendant Greenbelt Homes, Inc.’s “Members’ Handbook,” Cooperative housing is a form of home ownership in which the interest of each purchaser is represented by a Mutual Ownership Contract which creates a membership and share of the ownership in the Corporation, and which gives the member the right to perpetual use of a particular dwelling unit. Prospective purchasers of GHI homes submit an application for membership at the time they select a particular dwelling unit. Their application must be approved by the Board of Directors in order to become a member. Like all privileges, membership entails certain responsibilities; these responsibilities are prescribed by the Mutual Ownership Contract (MOC) and the Bylaws. Two underlying principles govern the use of Corporate controls: equal treatment for all members and decision making based upon the best interest of the majority of members. See Defendant Greenbelt Homes, Inc.’s “Members’ Handbook” at Part I – Member Information, Section I – GHI – A Housing Cooperative, Sub-section A – Legal Basis of GHI, Sub-section 1 – A Membership Cooperative. 11. Defendant Greenbelt Homes, Inc.’s Bylaws established the purpose and powers of the Corporation, its principles of operation, its means of handling business, its method of electing directors to supervise and control the business operations, and its financial controls. The Bylaws insure effective control by the membership by giving each member an equal share (one vote). See Defendant Greenbelt Homes, Inc.’s “Members’ Handbook” at Part I – Member Information, Section I – GHI – A Housing Cooperative, Sub-section A – Legal Basis of GHI, Subsection 3 – The Bylaws of the Corporation.

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12.

Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and

Mutual Ownership Contract is the contractual agreement between the member and the Corporation, which establishes the rights and obligations of both. This contract is the legal framework within which each member occupies and enjoys a particular residence for which title is legally held by Greenbelt Homes, Inc. It sets forth the services members can expect from GHI and the policies, which the member must observe while occupying a GHI home. See Defendant Greenbelt Homes, Inc.’s “Members’ Handbook” at Part I – Member Information, Section I – GHI – A Housing Cooperative, Subsection A – Legal Basis of GHI, Sub-section 4 – The Mutual Ownership Contract – The Basic Member Document. 13. Defendant Greenbelt Homes, Inc.’s rules and regulations are binding on all

members by virtue of their obligations to comply with the terms of their Mutual Ownership Contract and all members “agree[] to observe and comply faithfully with such Rules, and agree[] that all persons occupying or visiting in the Premises also shall observe and comply with such Rules.” See Defendant Greenbelt Homes, Inc.’s

“Members’ Handbook” at Part II – Rules and Regulations, Section I – Introduction. See also Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract, Page 4, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (e) – Rules Relating to Occupancy and Care of Premises. 14. Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and

Mutual Ownership Contract provides that “under Maryland law, this Contract creates a legal relationship between GHI and Member as that of landlord and tenant.” See

Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract, Page 1, Background Section, Paragraph (e).

5 Record Extract Page 90

15.

Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and

Mutual Ownership Contract provides that Member and each person named on the occupant list filled with GHI, shall use the Premises and the common property and facilities in conformance with the terms of this Contract, the Bylaws, and the Rules. Use of the Premises or any part of the Premises for any purpose contrary to the interests of GHI or its members as determined by GHI or contrary to law is not authorized. It shall be the duty of Member to respect the comfort and peace of mind of neighbors as well as of all members and tenants of GHI, not to engage in conduct that is objectionable conduct, and to ensure that all persons occupying or visiting in the Premises so act. Member agrees not to do or allow to be done, or keep or allow to be kept upon the Premises, anything that will increase the rate of insurance on the Premises or do or allow to be done any act or thing that shall or may be a nuisance, annoyance, inconvenience, or damage to GHI or its members or tenants, or to the occupants of adjoining dwellings or of the neighborhood. See Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract, Page 3, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises. 16. Plaintiff Schuman and, upon information and belief, the Popovic Defendants, own

shares in Defendant Greenbelt Homes, Inc.’s housing cooperative, which gives them the right to reside in their respective townhouses as well as requires them to abide by the housing cooperative’s rules and regulations concerning the use and occupancy of these townhouses. FACTS CONCERNING THE HEALTH CONSEQUENCES OF SECONDHAND SMOKE History of Studies Concerning the Health Consequences of Secondhand Smoke 17. The first Surgeon General’s report to systematically review existing evidence on

the health effects of secondhand smoke was published in 1972. See U.S. Department of Health, Education, and Welfare. The Health Consequences of Smoking. A Report of the Surgeon General: 1972. Washington: U.S. Department of Health, Education, and

6 Record Extract Page 91

Welfare, Public Health Service, Health Services and Mental Health Administration, 1972. DHEW Publication No. (HSM) 72-7516. 18. This 1972 report concluded that an atmosphere contaminated with tobacco smoke

causes discomfort in many persons, and levels of carbon monoxide measured in experiments in rooms filled with cigarette smoke could, on occasion, be harmful, particularly for individuals with preexisting diseases such as chronic obstructive pulmonary disease and coronary heart disease. 19. On December 15, 1986, United States Surgeon General C. Everett Koop released

The Health Consequences of Involuntary Smoking. A Report of the Surgeon General, the first Surgeon General’s report to conclude that involuntary exposure to tobacco smoke causes disease in nonsmokers. See U.S. Department of Health and Human

Services. The Health Consequences of Involuntary Smoking. A Report of the Surgeon General. Rockville (MD): U.S. Department of Health and Human Services, Public Health Service, Office on Smoking and Health, 1983. DHHS Publication No. (PHS) 8450204 [hereinafter “the 1986 Surgeon General’s Report”]. 20. The 1986 Surgeon General’s Report stated Cigarette smoking is an addictive behavior, and the individual smoker must decide whether or not to continue that behavior; however, it is evident from the data presented in this volume that the choice to smoke cannot interfere with the nonsmokers’ right to breathe air free of tobacco smoke. The right of smokers to smoke ends where their behavior affects the health and well-being of others; furthermore, it is the smokers’ responsibility to ensure that they do not expose nonsmokers to the potential harmful effects of tobacco smoke. See 1986 Surgeon General’s Report at Preface, page xii. 21. On June 27, 2006, United States Surgeon General Richard H. Carmona published

a 709 page report entitled, The Health Consequences of Involuntary Exposure to Tobacco

7 Record Extract Page 92

Smoke: A Report of the Surgeon General, in order to provide “a detailed review of the epidemiologic evidence on the health effects of involuntary exposure to tobacco smoke” based upon “massive and conclusive scientific evidence” established since the release of the 1986 Surgeon General’s Report. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Coordinating Center for Health Promotion, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006 [hereinafter “the 2006 Surgeon General’s Report”]. 22. The publication of the 2006 Surgeon General’s Report was “motivated by the

persistence of involuntary smoking as a public health problem and the need to evaluate the substantial new evidence reported since 1986.” See 2006 Surgeon General’s Report at page 8. 23. The 2006 Surgeon General’s Report states that the report was prepared by the Office on Smoking and Health, National Center for Chronic Disease Prevention and Health Promotion, Coordinating Center for Health Promotion, Centers for Disease Control and Prevention (CDC), and the U.S. [Department of Health and Human Services]. Initial chapters were written by 22 experts who were selected because of their knowledge of a particular topic. The contributions of the initial experts were consolidated into 10 major chapters that were then reviewed by more than 40 peer reviewers. The entire manuscript was then sent to more than 30 scientists and experts who reviewed it for its scientific integrity. After each review cycle, the drafts were revised by the scientific editors on the basis of the experts’ comments. Subsequently, the report was reviewed by various institutes and agencies within the U.S. [Department of Health and Human Services]. See 2006 Surgeon General’s Report at page 9. 24. The 2006 Surgeon General’s Report examines the topics of toxicology of secondhand smoke, assessments and prevalence of exposure to secondhand smoke, reproductive and 8 Record Extract Page 93

developmental health effects, respiratory effects of exposure to secondhand smoke in children and adults, cancer among adults, cardiovascular diseases, and the control of secondhand smoke exposure. See 2006 Surgeon General’s Report at page 8. Composition of Tobacco Smoke 25. Cigarette smoke “contains both particles and gases generated by the combustion

at high temperatures of tobacco, paper, and additives.” See 2006 Surgeon General’s Report at page 9. 26. There are at least 250 chemicals in secondhand smoke that are known to be toxic

or carcinogenic. See 2006 Surgeon General’s Report at page 29, citing U.S. Department of Health and Human Services. 9th Report on Carcinogens. Research Triangle Park (NC): U.S. Department of Health and Human Services, Public Health Service, National Institutes of Health, National Institute of Environmental Health Sciences, National Toxicology Program, 2000. 27. There are 19 gas-phase and 21 particulate matter compounds in sidestream smoke

that are known to cause pulmonary edema, immune alterations, cardiac arrthythmias, and hepatotoxic and neurologic conditions. See 2006 Surgeon General’s Report at page 29, citing California Environmental Protection Agency. Proposed Identification of

Environmental Tobacco Smoke as a Toxic Air Contaminant. Part B: Health Effects. Sacramento (CA): California Environmental Protection Agency, Office of

Environmental Health Hazard Assessment 2005. 28. The United States Environmental Protection Agency has designated secondhand

smoke as a Group A carcinogen. See 2006 Surgeon General’s Report at page 578. See also U.S. Environmental Protection Agency. Respiratory Health Effects of Passive

Smoking: Lung Cancer and Other Disorders. Washington: Environmental Protection 9 Record Extract Page 94

Agency, Office of Research and Development, Office of Air and Radiation, 1992. Publication No. EPA/600/006F. 29. In January 2006, the State of California Environmental Protection Agency’s Air

Resources Board formally designated secondhand smoke as a “Toxic Air Contaminant” that “may cause and/or contribute to death or serious illness.” See News Release dated January 26, 2006, published by the California Environmental Protection Agency, Air Resources Board found at http://www.arb.ca.gov/newsrel/nr012606.htm (accessed on December 10, 2008). Definition of “Secondhand Smoke” 30. The term “mainstream smoke” refers to the fumes that a smoker exhales during

the process of smoking tobacco. See 2006 Surgeon General’s Report at page 3. 31. The term “sidestream smoke” refers to the fumes given off by a smoldering

cigarette. See 2006 Surgeon General’s Report at page 3. 32. Sidestream smoke, which is generated at lower temperatures and under somewhat

different combustion conditions than mainstream smoke, tends to have higher concentrations of many of the toxins found in cigarette smoke. See 2006 Surgeon General’s Report at page 9. 33. The term “secondhand smoke” refers to the mixture of sidestream smoke given

off by a smoldering cigarette and mainstream smoke exhaled by a smoker that a nonsmoker inhales. See 2006 Surgeon General’s Report at page 3. 34. Secondhand smoke is an inherently dynamic mixture that changes in characteristics and concentration with the time since it was formed and the distance it has traveled. The smoke particles change in size and composition as gaseous components are volatilized and moisture content changes; gaseous 10 Record Extract Page 95

elements of secondhand smoke may be adsorbed onto materials, and particle concentrations drop with both dilution in the air or environment and impaction on surfaces, including the lungs or on the body. Because of its dynamic nature, a specific quantitative definition of secondhand smoke cannot be offered. See 2006 Surgeon General’s Report at page 9. 35. The 2006 Surgeon General’s Report states that the term “secondhand smoke” is

preferable to the term “environmental tobacco smoke” even though the latter may have been used more frequently in previous reports. The descriptor “secondhand” captures the involuntary nature of the exposure, while “environmental” does not. This report also refers to the inhalation of secondhand smoke as involuntary smoking, acknowledging that most nonsmokers do not want to inhale tobacco smoke. See 2006 Surgeon General’s Report at page 9. 36. Secondhand smoke is “involuntary” since “the exposure occurs as an unavoidable

consequence of breathing in a smoke-filled environment.” See 2006 Surgeon General’s Report at page 3. Secondhand Smoke and Immediate Threat to the Normal Functioning of the Heart, Blood and Vascular Systems 37. The 1986 Surgeon General’s Report did not address the issue of secondhand

smoke and cardiovascular disease since, at that time, only a few studies had been published on the association of secondhand smoke with cardiovascular disease. See 2006 Surgeon General’s Report at page 509. 38. Since 1986, however, many epidemiologic investigations have been carried out on

secondhand smoke exposure and its relationship to cardiovascular disease and stroke. See 2006 Surgeon General’s Report at page 509. 39. These epidemiological studies have “convincingly” demonstrated that secondhand

smoke is associated with an increased risk for cardiovascular disease. See 2006 Surgeon General’s Report at page 531.

11 Record Extract Page 96

40.

The authors of the 2006 Surgeon General’s Report evaluated and reviewed the

reports of many of these investigations in preparing the findings presented in the 2006 report. See 2006 Surgeon General’s Report at page 509. 41. One major finding of the 2006 Surgeon General’s Report is that Secondhand smoke interferes with the normal functioning of the heart, blood, and vascular systems in ways that increase the risk of a cardiac event. For some of these effects (changes in platelet and vascular function), the immediate effects of even short exposures to secondhand smoke appear to be as large as those seen in association with active smoking of one pack of cigarettes a day. . . The large body of evidence documenting that secondhand smoke produces substantial and rapid effects on the cardiovascular system demonstrates that even a brief exposure to secondhand smoke has adverse consequences for the heart, blood and blood vessels. See 2006 Surgeon General’s Report at page 64. 42. Secondhand smoke exposure can also make a heart attack more severe than it

would have been in the absence of exposure. See http://www.cdc.gov/tobacco/ data_statistics/fact_sheets/secondhand_smoke/health_effects/HeartDisease.htm (accessed on December 10, 2008). 43. Despite estimated exposure levels equivalent to smoking only one-half of one

cigarette per day, the estimated increase in risk of cardiovascular disease from exposure to secondhand smoke is 25 to 30 percent above that of unexposed persons. See 2006 Surgeon General’s Report at page 519. 44. The evidence is sufficient to infer a causal relationship between exposure to

secondhand smoke and increased risks of coronary heart disease morbidity and mortality among both men and women. See 2006 Surgeon General’s Report at page 532. 45. Even a short time in a smoky room can cause blood platelets to become stickier,

damage to the lining of blood vessels, a decrease in coronary flow velocity reserves to

12 Record Extract Page 97

levels observed in smokers, reduced heart rate variability and higher levels of “bad” cholesterol that can clog arteries. See http://www.cdc.gov/tobacco/ data_statistics/fact_sheets/secondhand_smoke/health_effects/HeartDisease.htm (accessed on December 10, 2008). 46. Persons who already have heart disease are at especially high risk of suffering

adverse effects from breathing secondhand smoke, and should take special precautions to avoid even brief exposures. See http://www.cdc.gov/tobacco/ data_statistics/fact_sheets/secondhand_smoke/health_effects/HeartDisease.htm (accessed on December 10, 2008). See also 2006 Surgeon General’s Report at page 576-77, citing Pechacek TF, Babb S. Commentary: How acute and reversible are the cardiovascular risks of secondhand smoke. British Medical Journal 2004; 328 (7446): 980-3. 47. A 2004 commentary published in the British Medical Journal and cited in the

2006 Surgeon General’s Report reviewed recent evidence on the acute cardiovascular effects of even brief secondhand smoke exposures and suggested that clinicians should advise patients who already have or are at special risk for heart disease to avoid indoor environments where there are likely to be smokers. See 2006 Surgeon General’s Report at page 576-77, citing Pechacek TF, Babb S. Commentary: How acute and reversible are the cardiovascular risks of secondhand smoke? British Medical Journal, 2004; 328 (7446): 980-3. Conclusion to the Surgeon General’s 2006 Report 48. The conclusion to the 2006 Surgeon General’s Report, entitled “A Vision for the

Future” states This country has experienced a substantial reduction of involuntary exposure to secondhand tobacco smoke in recent decades. Significant 13 Record Extract Page 98

reductions in the rate of smoking among adults began even earlier. Consequently, about 80 percent of adults are now nonsmokers, and many adults and children can live their daily lives without being exposed to secondhand smoke. Nevertheless, involuntary exposure to secondhand smoke remains a serious public health hazard. This report documents the mounting and now substantial evidence characterizing the health risks caused by exposure to secondhand smoke. Multiple major reviews of the evidence have concluded that secondhand smoke is a known human carcinogen, and that exposure to secondhand smoke causes adverse effects, particularly on the cardiovascular system and the respiratory tract and on the health of those exposed, children as well as adults. . . . Clearly, the social norms regarding secondhand smoke have changed dramatically, leading to widespread support over the past 30 years for a society free of involuntary exposures to tobacco smoke. In the first half of the twentieth century smoking was permitted in almost all public places, including elevators and all types of public transportation. At the time of the 1964 Surgeon General’s report on smoking and health, many physicians were still smokers, and the tables in U.S. Public Health Service (PHS) meeting rooms had PHS ashtrays on them. A thick, smoky haze was an accepted part of presentations at large meetings, even at medical conferences and in the hospital environment. . . . The ever-increasing momentum for smoke-free indoor environments has been driven by scientific evidence on the health risks of involuntary exposure to secondhand smoke. This new Surgeon General’s report is based on a far larger body of evidence than was available in 1986. The evidence reviewed in these 665 pages confirms the findings of the 1986 report and adds new causal conclusions. . . . Cardiovascular effects of even short exposures to secondhand smoke are readily measurable, and the risks for cardiovascular disease from involuntary smoking appear to be about 50 percent less than the risks for active smokers. Although the risks from secondhand smoke exposures are larger than anticipated, research on the mechanisms by which tobacco smoke exposure affects the cardiovascular system supports the plausibility of the findings of epidemiologic studies (the 1986 report did not address cardiovascular disease). This 2006 report also reviews the evidence on the multiple mechanisms by which secondhand smoke injures the respiratory tract and causes sudden infant death syndrome. Since 1986, the attitude of the public toward and the social norms around secondhand smoke exposure have changed dramatically to reflect a growing viewpoint that involuntary exposure of nonsmokers to 14 Record Extract Page 99

secondhand smoke is unacceptable. As a result, increasingly strict public policies to control involuntary exposure to secondhand smoke have been put in place. The need for restrictions on smoking in enclosed public places is now widely accepted in the United States. A growing number of communities, counties, and states are requiring smoke-free environments for nearly all enclosed public places, including all private worksites, restaurants, bars and casinos. . . . Research reviewed in this report indicates that policies creating completely smoke-free environments are the most economical and efficient approaches to providing this protection. . . . When this series of reports began in 1964, the majority of men and a substantial proportion of women were smokers, and most nonsmokers inevitably must have been involuntary smokers. With the release of the 1986 report, Surgeon General Koop noted that ‘the right of smokers to smoke ends where their behavior affects the health and well-being of others.’ As understanding increases regarding health consequences from even brief exposures to secondhand smoke, it becomes even clearer that the health of nonsmokers overall, and particularly the health of children, individuals with existing heart and lung problems, and other vulnerable populations, requires a higher priority and greater protection. Together, this report and the 2004 report of the Surgeon General, The Health Consequences of Smoking, document the extraordinary threat to the nation’s health from active and involuntary smoking. The recent reductions in exposures of nonsmokers to secondhand smoke represent significant progress, but involuntary exposures persist in many settings and environments. More evidence is needed to understand why this progress has not been equally shared across all populations and in all parts of this nation. Some states (California, Connecticut, Delaware, Maine, Massachusetts, New York, Rhode Island, and Washington) have met the Healthy People 2010 objectives that protect against involuntary exposures to secondhand smoke through recommended policies, regulations, and laws, while many other parts of this nation have not. Evidence presented in this report suggests that these disparities in levels of protection can be reduced or eliminated. Sustained progress toward a society free of involuntary exposures to secondhand smoke should remain a national public health priority. See 2006 Surgeon General’s Report at pages 66769.

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HVAC Systems Cannot Fully Control Exposures to Secondhand Smoke 49. Current HVAC systems cannot fully control exposures to secondhand smoke

unless a complete and total smoking ban is enforced. See 2006 Surgeon General’s Report at page 92. 50. In a position paper on secondhand smoke cited in the 2006 Surgeon General’s

Report, the American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE) stated At present, the only means of eliminating health risks associated with indoor exposure [to secondhand smoke] is to ban all smoking activity. Although complete separation and isolation of smoking rooms can control secondhand smoke exposure in non-smoking spaces in the same building, adverse health effects for the occupants of the smoking room cannot be controlled by ventilation. No other engineering approaches, including current and advanced dilution ventilation, ‘air curtains’ or air cleaning technologies, have been demonstrated or should be relied upon to control health risks from secondhand smoke exposure in spaces where smoking occurs, though some approaches may reduce that exposure and address odor and some forms of irritation. See American Society of Heating, Refrigerating and Air-Conditioning Engineers. Environmental Tobacco Smoke: Position Document. Atlanta: American Society of Heating, Refrigerating and Air-Conditioning Engineers, 2005. See also 2006 Surgeon General’s Report at page 638. 51. In fact, the operation of a heating, ventilating and air conditioning system can See 2006 Surgeon

actually distribute secondhand smoke throughout a building. General’s Report at page 92. Positive Effect of Smoking Bans 52.

Levels of airborne particulate matter in restaurants, bars and other hospitality

venues and levels of secondhand smoke exposure among non-smoking hospitality employees decrease substantially and rapidly after implementation of laws that prohibit smoking in indoor workplaces and public places. See 2006 Surgeon General’s Report at

16 Record Extract Page 101

page 609. See also July 20, 2007 edition of Morbidity and Mortality Weekly Report, Centers for Disease Control and Prevention, found at

http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5628a2.htm (accessed on December 10, 2008) and Repace J. Respirable particles and carcinogens in the air of Delaware hospitality venues before and after a smoking ban. Environmental Medicine 2004b; 46(9): 887-905. 53. A study that assessed air nicotine concentrations before and after implementation Journal of Occupational and

of a workplace smoking policy showed a 98 percent reduction in nicotine concentrations following a smokefree policy implementation. See 2006 Surgeon General’s Report at page 609. See also Vaughn WM, Hammond SK. Impact of “designated smoking area” policy on nicotine vapor and particle concentrations in a modern office building. Journal of the Air & Waste Management Association 1990; 40(7): 1012-7. 54. Another study by the New York State Department of Health measured levels of

cotinine1 in saliva among non-smokers both before and after implementation of the 2003 New York State ban on smoking in indoor workplaces and other public places. See July 20, 2007 edition of Morbidity and Mortality Weekly Report, Centers for Disease Control and Prevention, found at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5628a2.htm (accessed on December 10, 2008). 55. The New York State Department of Health report concluded that saliva cotinine

levels in non-smokers decreased by 47.4% after the New York State smoking ban took effect, and thus, “comprehensive smoking bans can reduce [secondhand smoke] exposure
1

Cotinine is a metabolite, a product formed by the body, from nicotine. Levels of cotinine in blood indicate the amount of exposure a person has had to tobacco smoke. Third National Report on Human Exposure to Environmental Chemicals - Spotlight on Cotinine, Centers for Disease Control and Prevention, NCEH Pub. 05-0664, July 2005. 17 Record Extract Page 102

among nonsmokers. See July 20, 2007 edition of Morbidity and Mortality Weekly Report, Centers for Disease Control and Prevention, found at

http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5628a2.htm (accessed on December 10, 2008). National, State and Local Laws Protecting the Public from the Dangers of Secondhand Smoke 56. Healthy People 2010, a directive of the U.S. Department of Health and Human

Services calls for all states to adopt laws making enclosed workplaces and public places smoke free. See 2006 Surgeon General’s Report at page 582. See also U.S. Department of Health and Human Services. Healthy People 2010: Understanding and Improving Health. Washington: U.S. Government Printing Office, 2000a. 57. A Surgeon General’s Report that was published in 2000 concluded that “smoking

bans are the most effective method for reducing ETS exposure,” and that “[o]ptimal protection of nonsmokers and smokers requires a smokefree environment.” See 2006 Surgeon General’s Report at page 609. See also U.S. Department of Health and Human Services. Reducing Tobacco Use. A Report of the Surgeon General. Atlanta: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2000c:198 at page 261. 58. The Surgeon General’s 2006 Report found that “the tobacco industry has

responded to local clean indoor air policy efforts by working with hospitality and gaming interests and other organizations to prevent local ordinances from being adopted and to attempt to reverse them once they have been enacted.” See 2006 Surgeon General’s Report at page 581. 18 Record Extract Page 103

59.

Despite the tobacco and hospitality industries’ efforts to block laws to protect the

public from the dangers of secondhand smoke, the following 25 states, districts and territories, have enacted smokefree workplace laws that prohibit smoking in bars and restaurants: Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Iowa, Illinois, Maine, Maryland, Massachusetts, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Puerto Rico, Rhode Island, Utah, Vermont, and Washington State. See States, Commonwealths, and Municipalities with 100% Smokefree Laws in Workplaces, Restaurants, or Bars, Americans for Nonsmokers’ Rights Foundation, October 2, 2008; http://no-

smoke.org/pdf/100ordlist.pdf (accessed on December 10, 2008). See also 2006 Surgeon General’s Report at page 582. 60. In addition, many local jurisdictions in states that have not enacted statewide laws

related to secondhand smoke have enacted local ordinances prohibiting smoking in all places of employment, including bars and restaurants. See 2006 Surgeon General’s Report at page 582. 61. In total, over 50% of the American public is protected from the dangers of

secondhand smoke in bars and restaurants. See Over 50% of Americans Covered by 100% Smokefree Measures, Americans for Nonsmokers’ Rights, December 6, 2006, http://www.no-smoke.org/document.php?id=525 (accessed on December 10, 2008). 62. Ten of the thirteen Canadian provinces and territories are 100% smokefree in all

bars and restaurants, and two of the ten provinces, Newfoundland and Nova Scotia, also prohibit smoking in outdoor seating areas. See Smokefree Status of Restaurants and Bars Around the World, American Nonsmokers’ Rights Foundation, Berkeley, California,

19 Record Extract Page 104

October

2,

2008,

http://www.no-smoke.org/pdf/internationalbarsandrestaurants.pdf

(accessed on December 10, 2008). 63. All Australian provinces except for the Northern Territories are 100% smokefree

in all bars and restaurants. See Smokefree Status of Restaurants and Bars Around the World, American Nonsmokers’ Rights Foundation, Berkeley, California, October 2, 2008, http://www.no-smoke.org/pdf/internationalbarsandrestaurants.pdf (accessed on December 10, 2008). 64. France, Hong Kong, Ireland, Iran, New Zealand, Norway and the United

Kingdom have all enacted 100% smokefree laws covering bars and restaurants. See Smokefree Status of Restaurants and Bars Around the World, American Nonsmokers’ Rights Foundation, Berkeley, California, October 2, 2008, http://www.no-

smoke.org/pdf/internationalbarsandrestaurants.pdf (accessed on December 10, 2008). Outdoor Smoking Bans 65. More than 575 local jurisdictions have passed ordinances banning smoking in

outdoor areas. See 2006 Surgeon General’s Report at page 633. 66. These outdoor smoking bans “reflect a growing movement toward banning

smoking in outdoor public places.” See 2006 Surgeon General’s Report at page 633. There is No Risk-Free Level of Exposure of Secondhand Smoke 67. The scientific evidence indicates that there is no risk-free level of exposure to

secondhand smoke. See 2006 Surgeon General’s Report at page 11. 68. Eliminating smoking in indoor spaces fully protects nonsmokers from exposure to

secondhand smoke. See 2006 Surgeon General’s Report at page 11.

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69.

Separating smokers from nonsmokers, cleaning the air, and ventilating buildings

cannot eliminate exposures of nonsmokers to secondhand smoke. See 2006 Surgeon General’s Report at page 11. Argument I. THIS HONORABLE COURT SHOULD GRANT THIS MOTION FOR A PRELIMINARY AND A PERMANENT INJUNCTION PURSUANT TO MARYLAND RULE 15-501, ET SEQ. DIRECTING THE POPOVIC DEFENDANTS TO STOP SMOKING TOBACCO PRODUCTS IN THEIR HOME OR THE ADJACENT YARD AND TO PREVENT THIRD PARTIES FROM SMOKING TOBACCO PRODUCTS IN THEIR HOME OR ADJACENT YARD. This Honorable Court should grant this motion for a preliminary and a permanent injunction pursuant to Maryland Rule 15-501, et seq. directing the Popovic Defendants to stop smoking tobacco products in their home or the adjacent yard and to prevent third parties from smoking tobacco products in their home or adjacent yard. The term

“injunction” means “an order mandating or prohibiting a specified act.” Md. Rule 15501 (a). A “preliminary injunction” is an “injunction granted after opportunity for a full adversary hearing on the propriety of its issuance but before a final determination of the merits of the action.” Md. Rule 15-501 (b). Pursuant to Md. Rule 15-502 (b), this Honorable Court may “grant an injunction upon the terms and conditions justice may require.” Injunctive relief is "a preventative and protective remedy, aimed at future acts, and is not intended to redress past wrongs.” Eastside Vend Distributors, Inc. v. Pepsi Bottling Group, Inc., 396 Md. 219, 240 (2006). “Preliminary injunctions are designed to maintain the status quo between parties during the course of litigation.” Id. at 241. The granting or denial of an interlocutory injunction is a matter resting in the sound discretion of the court. Id. at 240. “As a general rule, the appropriateness of granting an

interlocutory injunction is determined by examining four factors: (1) the likelihood that 21 Record Extract Page 106

the plaintiff will succeed on the merits; (2) the 'balance of convenience' determined by whether greater injury would be done to the defendant by granting the injunction than would result from its refusal; (3) whether the plaintiff will suffer irreparable injury unless the injunction is granted; and (4) the public interest.” Id. In Eastside Vend, the court observed that the “first step in determining whether to grant or deny a motion for preliminary injunction is to balance the 'likelihood' of irreparable harm to the plaintiff against the 'likelihood' of harm to the defendant, i.e., the balance of hardships.” Id. at 245. In the instant case, the likelihood of irreparable harm to Plaintiff Shuman is strong – so strong that his health continues to suffer each and every day that he lives in a smokefilled environment. Balancing the likelihood of irreparable harm to Plaintiff Schuman versus the likelihood of harm to the Popovic Defendants clearly results in a likelihood of harm overwhelmingly on Plaintiff Schuman’s side as the Popovic Defendants’ only damage, should an injunction be issued, is having to smoke outside of their unit and smoke far enough away from Plaintiff Schuman’s dwelling as not to cause him harm. Similarly, the “balance of convenience” weighs in Plaintiff Schuman’s favor. Plaintiff Schuman’s average daily secondhand smoke/nicotine exposure produces an excess chronic mortality risk that exceeds by 910 times the de minimis risk level used by the U.S. Environmental Protection Agency for hazardous air pollutants. See Mr. Repace’s Report that is attached to his complaint as Exhibit 1. It is also clear from a review of the lease with Defendant Greenbelt Homes, Inc. under which both Plaintiff Schuman and the Popovic Defendants are parties, that secondhand smoke, if it enters another unit, is a “nuisance” or “annoyance” that causes “inconvenience” or “damage” to the occupiers of

22 Record Extract Page 107

the other unit. See Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract, Page 3, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises. Thus, there is a strong likelihood that Plaintiff Schuman will succeed on the merits. Plaintiff Schuman will also continue to suffer irreparable injury unless the injunction sought is granted, and it is in the public’s interest for this injunction to be granted as this injunction furthers the public’s interest in providing Maryland residents with safe and healthy dwelling places. Thus, this Honorable Court should grant this motion for a preliminary and a permanent injunction pursuant to Maryland Rule 15-501, et seq. directing the Popovic Defendants to stop smoking tobacco products in their home or the adjacent yard and to prevent third parties from smoking tobacco products in their home or adjacent yard. II. THIS HONORABLE COURT SHOULD ENTER A DECLARATORY JUDGMENT FINDING THAT DEFENDANT SVETLANA POPOVIC’S AND/OR DEFENDANT DARKO POPOVIC’S PRACTICE OF SMOKING OR ALLOWING SMOKING OF CIGARETTES IN THEIR HOME AND/OR THE ADJACENT YARD IS “OBJECTIONABLE CONDUCT” THAT CONSTITUTES A “NUISANCE” AND CAUSES PLAINTIFF SCHUMAN “ANNOYANCE,” “INCONVENIENCE,” OR “DAMAGE” AS THESE TERMS ARE DEFINED IN DEFENDANT GREENBELT HOMES, INC.’S COOPERATIVE HOUSING PROPRIETARY LEASE AND MUTUAL OWNERSHIP CONTRACT AT PAGE 3, CONTRACT TERMS AND CONDITIONS SECTION, PARAGRAPH 3 – PERPETUAL USE AND OCCUPANCY, SECTION (D) – AUTHORIZED USE OF PREMISES. This Honorable Court should enter a declaratory judgment pursuant to Section 3401, et seq. of the Maryland Code (Courts and Judicial Proceedings Article) finding that Defendant Svetlana Popovic’s and/or Defendant Darko Popovic’s practice of smoking or allowing smoking of cigarettes in their home and/or the adjacent yard is “objectionable conduct” that constitutes a “nuisance” and causes Plaintiff Schuman “annoyance,” 23 Record Extract Page 108

“inconvenience,” or “damage” as these terms are defined in Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract at Page 3, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises. The purpose of the Maryland Uniform Declaratory Judgments Act, Md. Code §§ 3-401, et seq. (Courts and Judicial Proceedings article), is to “settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Proceedings article). Md. Code §§ 3-402 (Courts and Judicial Id.

This act “shall be liberally construed and administered.”

Pursuant to Md. Code §§ 3-403 (Courts and Judicial Proceedings article), this Honorable Court “may declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Md. Code §§ 3-406 (Courts and Judicial Proceedings article) provides that “[a]ny person interested under a deed, will, trust, land patent, written contract, or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, administrative rule or regulation, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, administrative rule or regulation, land patent, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it. Md. Code §§ 3-409 (a) (Courts and Judicial Proceedings article) states that “[i]n general. -- Except as provided in subsection (d) of this section, a court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if: (1) An actual controversy exists between contending parties; (2) Antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or (3) A party asserts a legal

24 Record Extract Page 109

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“damage” as these terms are defined in Defendant Greenbelt Homes, Inc.’s Cooperative Housing Proprietary Lease and Mutual Ownership Contract at Page 3, Contract Terms and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises. FACTS CONCERNING THE HEALTH CONSEQUENCES OF SECONDHAND SMOKE History of Studies Concerning the Health Consequences of Secondhand Smoke 3. The first Surgeon General’s report to systematically review existing evidence on

the health effects of secondhand smoke was published in 1972. See U.S. Department of Health, Education, and Welfare. The Health Consequences of Smoking. A Report of the Surgeon General: 1972. Washington: U.S. Department of Health, Education, and

Welfare, Public Health Service, Health Services and Mental Health Administration, 1972. DHEW Publication No. (HSM) 72-7516. 4. This 1972 report concluded that an atmosphere contaminated with tobacco smoke

causes discomfort in many persons, and levels of carbon monoxide measured in experiments in rooms filled with cigarette smoke could, on occasion, be harmful, particularly for individuals with preexisting diseases such as chronic obstructive pulmonary disease and coronary heart disease. 5. On December 15, 1986, United States Surgeon General C. Everett Koop released

The Health Consequences of Involuntary Smoking. A Report of the Surgeon General, the first Surgeon General’s report to conclude that involuntary exposure to tobacco smoke causes disease in nonsmokers. See U.S. Department of Health and Human

Services. The Health Consequences of Involuntary Smoking. A Report of the Surgeon General. Rockville (MD): U.S. Department of Health and Human Services, Public 2 Record Extract Page 112

Health Service, Office on Smoking and Health, 1983. DHHS Publication No. (PHS) 8450204 [hereinafter “the 1986 Surgeon General’s Report”]. 6. The 1986 Surgeon General’s Report stated Cigarette smoking is an addictive behavior, and the individual smoker must decide whether or not to continue that behavior; however, it is evident from the data presented in this volume that the choice to smoke cannot interfere with the nonsmokers’ right to breathe air free of tobacco smoke. The right of smokers to smoke ends where their behavior affects the health and well-being of others; furthermore, it is the smokers’ responsibility to ensure that they do not expose nonsmokers to the potential harmful effects of tobacco smoke. See 1986 Surgeon General’s Report at Preface, page xii. 7. On June 27, 2006, United States Surgeon General Richard H. Carmona published

a 709 page report entitled, The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General, in order to provide “a detailed review of the epidemiologic evidence on the health effects of involuntary exposure to tobacco smoke” based upon “massive and conclusive scientific evidence” established since the release of the 1986 Surgeon General’s Report. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Coordinating Center for Health Promotion, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006 [hereinafter “the 2006 Surgeon General’s Report”]. 8. The publication of the 2006 Surgeon General’s Report was “motivated by the

persistence of involuntary smoking as a public health problem and the need to evaluate the substantial new evidence reported since 1986.” See 2006 Surgeon General’s Report at page 8.

3 Record Extract Page 113

9.

The 2006 Surgeon General’s Report states that the report was prepared by the Office on Smoking and Health, National Center for Chronic Disease Prevention and Health Promotion, Coordinating Center for Health Promotion, Centers for Disease Control and Prevention (CDC), and the U.S. [Department of Health and Human Services]. Initial chapters were written by 22 experts who were selected because of their knowledge of a particular topic. The contributions of the initial experts were consolidated into 10 major chapters that were then reviewed by more than 40 peer reviewers. The entire manuscript was then sent to more than 30 scientists and experts who reviewed it for its scientific integrity. After each review cycle, the drafts were revised by the scientific editors on the basis of the experts’ comments. Subsequently, the report was reviewed by various institutes and agencies within the U.S. [Department of Health and Human Services]. See 2006 Surgeon General’s Report at page 9.

10.

The 2006 Surgeon General’s Report examines the topics of toxicology of secondhand smoke, assessments and prevalence of exposure to secondhand smoke, reproductive and developmental health effects, respiratory effects of exposure to secondhand smoke in children and adults, cancer among adults, cardiovascular diseases, and the control of secondhand smoke exposure. See 2006 Surgeon General’s Report at page 8. Composition of Tobacco Smoke

11.

Cigarette smoke “contains both particles and gases generated by the combustion

at high temperatures of tobacco, paper, and additives.” See 2006 Surgeon General’s Report at page 9. 12. There are at least 250 chemicals in secondhand smoke that are known to be toxic

or carcinogenic. See 2006 Surgeon General’s Report at page 29, citing U.S. Department of Health and Human Services. 9th Report on Carcinogens. Research Triangle Park (NC): U.S. Department of Health and Human Services, Public Health Service, National Institutes of Health, National Institute of Environmental Health Sciences, National Toxicology Program, 2000.

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13.

There are 19 gas-phase and 21 particulate matter compounds in sidestream smoke

that are known to cause pulmonary edema, immune alterations, cardiac arrthythmias, and hepatotoxic and neurologic conditions. See 2006 Surgeon General’s Report at page 29, citing California Environmental Protection Agency. Proposed Identification of

Environmental Tobacco Smoke as a Toxic Air Contaminant. Part B: Health Effects. Sacramento (CA): California Environmental Protection Agency, Office of

Environmental Health Hazard Assessment 2005. 14. The United States Environmental Protection Agency has designated secondhand

smoke as a Group A carcinogen. See 2006 Surgeon General’s Report at page 578. See also U.S. Environmental Protection Agency. Respiratory Health Effects of Passive

Smoking: Lung Cancer and Other Disorders. Washington: Environmental Protection Agency, Office of Research and Development, Office of Air and Radiation, 1992. Publication No. EPA/600/006F. 15. In January 2006, the State of California Environmental Protection Agency’s Air

Resources Board formally designated secondhand smoke as a “Toxic Air Contaminant” that “may cause and/or contribute to death or serious illness.” See News Release dated January 26, 2006, published by the California Environmental Protection Agency, Air Resources Board found at http://www.arb.ca.gov/newsrel/nr012606.htm (accessed on December 10, 2008). Definition of “Secondhand Smoke” 16. The term “mainstream smoke” refers to the fumes that a smoker exhales during

the process of smoking tobacco. See 2006 Surgeon General’s Report at page 3.

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17.

The term “sidestream smoke” refers to the fumes given off by a smoldering

cigarette. See 2006 Surgeon General’s Report at page 3. 18. Sidestream smoke, which is generated at lower temperatures and under somewhat

different combustion conditions than mainstream smoke, tends to have higher concentrations of many of the toxins found in cigarette smoke. See 2006 Surgeon General’s Report at page 9. 19. The term “secondhand smoke” refers to the mixture of sidestream smoke given

off by a smoldering cigarette and mainstream smoke exhaled by a smoker that a nonsmoker inhales. See 2006 Surgeon General’s Report at page 3. 20. Secondhand smoke is an inherently dynamic mixture that changes in characteristics and concentration with the time since it was formed and the distance it has traveled. The smoke particles change in size and composition as gaseous components are volatilized and moisture content changes; gaseous elements of secondhand smoke may be adsorbed onto materials, and particle concentrations drop with both dilution in the air or environment and impaction on surfaces, including the lungs or on the body. Because of its dynamic nature, a specific quantitative definition of secondhand smoke cannot be offered. See 2006 Surgeon General’s Report at page 9. 21. The 2006 Surgeon General’s Report states that the term “secondhand smoke” is

preferable to the term “environmental tobacco smoke” even though the latter may have been used more frequently in previous reports. The descriptor “secondhand” captures the involuntary nature of the exposure, while “environmental” does not. This report also refers to the inhalation of secondhand smoke as involuntary smoking, acknowledging that most nonsmokers do not want to inhale tobacco smoke. See 2006 Surgeon General’s Report at page 9. 22. Secondhand smoke is “involuntary” since “the exposure occurs as an unavoidable

consequence of breathing in a smoke-filled environment.” See 2006 Surgeon General’s Report at page 3. 6 Record Extract Page 116

Secondhand Smoke and Immediate Threat to the Normal Functioning of the Heart, Blood and Vascular Systems 23. The 1986 Surgeon General’s Report did not address the issue of secondhand

smoke and cardiovascular disease since, at that time, only a few studies had been published on the association of secondhand smoke with cardiovascular disease. See 2006 Surgeon General’s Report at page 509. 24. Since 1986, however, many epidemiologic investigations have been carried out on

secondhand smoke exposure and its relationship to cardiovascular disease and stroke. See 2006 Surgeon General’s Report at page 509. 25. These epidemiological studies have “convincingly” demonstrated that secondhand

smoke is associated with an increased risk for cardiovascular disease. See 2006 Surgeon General’s Report at page 531. 26. The authors of the 2006 Surgeon General’s Report evaluated and reviewed the

reports of many of these investigations in preparing the findings presented in the 2006 report. See 2006 Surgeon General’s Report at page 509. 27. One major finding of the 2006 Surgeon General’s Report is that Secondhand smoke interferes with the normal functioning of the heart, blood, and vascular systems in ways that increase the risk of a cardiac event. For some of these effects (changes in platelet and vascular function), the immediate effects of even short exposures to secondhand smoke appear to be as large as those seen in association with active smoking of one pack of cigarettes a day. . . The large body of evidence documenting that secondhand smoke produces substantial and rapid effects on the cardiovascular system demonstrates that even a brief exposure to secondhand smoke has adverse consequences for the heart, blood and blood vessels. See 2006 Surgeon General’s Report at page 64. 28. Secondhand smoke exposure can also make a heart attack more severe than it

would have been in the absence of exposure. See http://www.cdc.gov/tobacco/

7 Record Extract Page 117

data_statistics/fact_sheets/secondhand_smoke/health_effects/HeartDisease.htm (accessed on December 10, 2008). 29. Despite estimated exposure levels equivalent to smoking only one-half of one

cigarette per day, the estimated increase in risk of cardiovascular disease from exposure to secondhand smoke is 25 to 30 percent above that of unexposed persons. See 2006 Surgeon General’s Report at page 519. 30. The evidence is sufficient to infer a causal relationship between exposure to

secondhand smoke and increased risks of coronary heart disease morbidity and mortality among both men and women. See 2006 Surgeon General’s Report at page 532. 31. Even a short time in a smoky room can cause blood platelets to become stickier,

damage to the lining of blood vessels, a decrease in coronary flow velocity reserves to levels observed in smokers, reduced heart rate variability and higher levels of “bad” cholesterol that can clog arteries. See http://www.cdc.gov/tobacco/ data_statistics/fact_sheets/secondhand_smoke/health_effects/HeartDisease.htm (accessed on December 10, 2008). 32. Persons who already have heart disease are at especially high risk of suffering

adverse effects from breathing secondhand smoke, and should take special precautions to avoid even brief exposures. See http://www.cdc.gov/tobacco/ data_statistics/fact_sheets/secondhand_smoke/health_effects/HeartDisease.htm (accessed on December 10, 2008). See also 2006 Surgeon General’s Report at page 576-77, citing Pechacek TF, Babb S. Commentary: How acute and reversible are the cardiovascular risks of secondhand smoke. British Medical Journal 2004; 328 (7446): 980-3.

8 Record Extract Page 118

33.

A 2004 commentary published in the British Medical Journal and cited in the

2006 Surgeon General’s Report reviewed recent evidence on the acute cardiovascular effects of even brief secondhand smoke exposures and suggested that clinicians should advise patients who already have or are at special risk for heart disease to avoid indoor environments where there are likely to be smokers. See 2006 Surgeon General’s Report at page 576-77, citing Pechacek TF, Babb S. Commentary: How acute and reversible are the cardiovascular risks of secondhand smoke? British Medical Journal, 2004; 328 (7446): 980-3. Conclusion to the Surgeon General’s 2006 Report 34. The conclusion to the 2006 Surgeon General’s Report, entitled “A Vision for the

Future” states This country has experienced a substantial reduction of involuntary exposure to secondhand tobacco smoke in recent decades. Significant reductions in the rate of smoking among adults began even earlier. Consequently, about 80 percent of adults are now nonsmokers, and many adults and children can live their daily lives without being exposed to secondhand smoke. Nevertheless, involuntary exposure to secondhand smoke remains a serious public health hazard. This report documents the mounting and now substantial evidence characterizing the health risks caused by exposure to secondhand smoke. Multiple major reviews of the evidence have concluded that secondhand smoke is a known human carcinogen, and that exposure to secondhand smoke causes adverse effects, particularly on the cardiovascular system and the respiratory tract and on the health of those exposed, children as well as adults. . . . Clearly, the social norms regarding secondhand smoke have changed dramatically, leading to widespread support over the past 30 years for a society free of involuntary exposures to tobacco smoke. In the first half of the twentieth century smoking was permitted in almost all public places, including elevators and all types of public transportation. At the time of the 1964 Surgeon General’s report on smoking and health, many physicians were still smokers, and the tables in U.S. Public Health Service (PHS) meeting rooms had PHS ashtrays on them. A thick, smoky haze 9 Record Extract Page 119

was an accepted part of presentations at large meetings, even at medical conferences and in the hospital environment. . . . The ever-increasing momentum for smoke-free indoor environments has been driven by scientific evidence on the health risks of involuntary exposure to secondhand smoke. This new Surgeon General’s report is based on a far larger body of evidence than was available in 1986. The evidence reviewed in these 665 pages confirms the findings of the 1986 report and adds new causal conclusions. . . . Cardiovascular effects of even short exposures to secondhand smoke are readily measurable, and the risks for cardiovascular disease from involuntary smoking appear to be about 50 percent less than the risks for active smokers. Although the risks from secondhand smoke exposures are larger than anticipated, research on the mechanisms by which tobacco smoke exposure affects the cardiovascular system supports the plausibility of the findings of epidemiologic studies (the 1986 report did not address cardiovascular disease). This 2006 report also reviews the evidence on the multiple mechanisms by which secondhand smoke injures the respiratory tract and causes sudden infant death syndrome. Since 1986, the attitude of the public toward and the social norms around secondhand smoke exposure have changed dramatically to reflect a growing viewpoint that involuntary exposure of nonsmokers to secondhand smoke is unacceptable. As a result, increasingly strict public policies to control involuntary exposure to secondhand smoke have been put in place. The need for restrictions on smoking in enclosed public places is now widely accepted in the United States. A growing number of communities, counties, and states are requiring smoke-free environments for nearly all enclosed public places, including all private worksites, restaurants, bars and casinos. . . . Research reviewed in this report indicates that policies creating completely smoke-free environments are the most economical and efficient approaches to providing this protection. . . . When this series of reports began in 1964, the majority of men and a substantial proportion of women were smokers, and most nonsmokers inevitably must have been involuntary smokers. With the release of the 1986 report, Surgeon General Koop noted that ‘the right of smokers to smoke ends where their behavior affects the health and well-being of others.’ As understanding increases regarding health consequences from even brief exposures to secondhand smoke, it becomes even clearer that the health of nonsmokers overall, and particularly the health of children, individuals with existing heart and lung problems, and other vulnerable populations, requires a higher priority and greater protection. 10 Record Extract Page 120

Together, this report and the 2004 report of the Surgeon General, The Health Consequences of Smoking, document the extraordinary threat to the nation’s health from active and involuntary smoking. The recent reductions in exposures of nonsmokers to secondhand smoke represent significant progress, but involuntary exposures persist in many settings and environments. More evidence is needed to understand why this progress has not been equally shared across all populations and in all parts of this nation. Some states (California, Connecticut, Delaware, Maine, Massachusetts, New York, Rhode Island, and Washington) have met the Healthy People 2010 objectives that protect against involuntary exposures to secondhand smoke through recommended policies, regulations, and laws, while many other parts of this nation have not. Evidence presented in this report suggests that these disparities in levels of protection can be reduced or eliminated. Sustained progress toward a society free of involuntary exposures to secondhand smoke should remain a national public health priority. See 2006 Surgeon General’s Report at pages 66769. HVAC Systems Cannot Fully Control Exposures to Secondhand Smoke 35. Current HVAC systems cannot fully control exposures to secondhand smoke

unless a complete and total smoking ban is enforced. See 2006 Surgeon General’s Report at page 92. 36. In a position paper on secondhand smoke cited in the 2006 Surgeon General’s

Report, the American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE) stated At present, the only means of eliminating health risks associated with indoor exposure [to secondhand smoke] is to ban all smoking activity. Although complete separation and isolation of smoking rooms can control secondhand smoke exposure in non-smoking spaces in the same building, adverse health effects for the occupants of the smoking room cannot be controlled by ventilation. No other engineering approaches, including current and advanced dilution ventilation, ‘air curtains’ or air cleaning technologies, have been demonstrated or should be relied upon to control health risks from secondhand smoke exposure in spaces where smoking occurs, though some approaches may reduce that exposure and address odor and some forms of irritation. See American Society of Heating, Refrigerating and Air-Conditioning Engineers. Environmental Tobacco Smoke: Position Document. Atlanta: American Society of Heating, 11 Record Extract Page 121

Refrigerating and Air-Conditioning Engineers, 2005. Surgeon General’s Report at page 638. 37.

See also 2006

In fact, the operation of a heating, ventilating and air conditioning system can See 2006 Surgeon

actually distribute secondhand smoke throughout a building. General’s Report at page 92. Positive Effect of Smoking Bans 38.

Levels of airborne particulate matter in restaurants, bars and other hospitality

venues and levels of secondhand smoke exposure among non-smoking hospitality employees decrease substantially and rapidly after implementation of laws that prohibit smoking in indoor workplaces and public places. See 2006 Surgeon General’s Report at page 609. See also July 20, 2007 edition of Morbidity and Mortality Weekly Report, Centers for Disease Control and Prevention, found at

http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5628a2.htm (accessed on December 10, 2008) and Repace J. Respirable particles and carcinogens in the air of Delaware hospitality venues before and after a smoking ban. Environmental Medicine 2004b; 46(9): 887-905. 39. A study that assessed air nicotine concentrations before and after implementation Journal of Occupational and

of a workplace smoking policy showed a 98 percent reduction in nicotine concentrations following a smokefree policy implementation. See 2006 Surgeon General’s Report at page 609. See also Vaughn WM, Hammond SK. Impact of “designated smoking area” policy on nicotine vapor and particle concentrations in a modern office building. Journal of the Air & Waste Management Association 1990; 40(7): 1012-7.

12 Record Extract Page 122

40.

Another study by the New York State Department of Health measured levels of

cotinine1 in saliva among non-smokers both before and after implementation of the 2003 New York State ban on smoking in indoor workplaces and other public places. See July 20, 2007 edition of Morbidity and Mortality Weekly Report, Centers for Disease Control and Prevention, found at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5628a2.htm (accessed on December 10, 2008). 41. The New York State Department of Health report concluded that saliva cotinine

levels in non-smokers decreased by 47.4% after the New York State smoking ban took effect, and thus, “comprehensive smoking bans can reduce [secondhand smoke] exposure among nonsmokers. See July 20, 2007 edition of Morbidity and Mortality Weekly Report, Centers for Disease Control and Prevention, found at

http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5628a2.htm (accessed on December 10, 2008). National, State and Local Laws Protecting the Public from the Dangers of Secondhand Smoke 42. Healthy People 2010, a directive of the U.S. Department of Health and Human

Services calls for all states to adopt laws making enclosed workplaces and public places smoke free. See 2006 Surgeon General’s Report at page 582. See also U.S. Department of Health and Human Services. Healthy People 2010: Understanding and Improving Health. Washington: U.S. Government Printing Office, 2000a.

1

Cotinine is a metabolite, a product formed by the body, from nicotine. Levels of cotinine in blood indicate the amount of exposure a person has had to tobacco smoke. Third National Report on Human Exposure to Environmental Chemicals - Spotlight on Cotinine, Centers for Disease Control and Prevention, NCEH Pub. 05-0664, July 2005. 13 Record Extract Page 123

43.

A Surgeon General’s Report that was published in 2000 concluded that “smoking

bans are the most effective method for reducing ETS exposure,” and that “[o]ptimal protection of nonsmokers and smokers requires a smokefree environment.” See 2006 Surgeon General’s Report at page 609. See also U.S. Department of Health and Human Services. Reducing Tobacco Use. A Report of the Surgeon General. Atlanta: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2000c:198 at page 261. 44. The Surgeon General’s 2006 Report found that “the tobacco industry has

responded to local clean indoor air policy efforts by working with hospitality and gaming interests and other organizations to prevent local ordinances from being adopted and to attempt to reverse them once they have been enacted.” See 2006 Surgeon General’s Report at page 581. 45. Despite the tobacco and hospitality industries’ efforts to block laws to protect the

public from the dangers of secondhand smoke, the following 25 states, districts and territories, have enacted smokefree workplace laws that prohibit smoking in bars and restaurants: Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Iowa, Illinois, Maine, Maryland, Massachusetts, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Puerto Rico, Rhode Island, Utah, Vermont, and Washington State. See States, Commonwealths, and Municipalities with 100% Smokefree Laws in Workplaces, Restaurants, or Bars, Americans for Nonsmokers’ Rights Foundation, October 2, 2008; http://no-

14 Record Extract Page 124

smoke.org/pdf/100ordlist.pdf (accessed on December 10, 2008). See also 2006 Surgeon General’s Report at page 582. 46. In addition, many local jurisdictions in states that have not enacted statewide laws

related to secondhand smoke have enacted local ordinances prohibiting smoking in all places of employment, including bars and restaurants. See 2006 Surgeon General’s Report at page 582. 47. In total, over 50% of the American public is protected from the dangers of

secondhand smoke in bars and restaurants. See Over 50% of Americans Covered by 100% Smokefree Measures, Americans for Nonsmokers’ Rights, December 6, 2006, http://www.no-smoke.org/document.php?id=525 (accessed on December 10, 2008). 48. Ten of the thirteen Canadian provinces and territories are 100% smokefree in all

bars and restaurants, and two of the ten provinces, Newfoundland and Nova Scotia, also prohibit smoking in outdoor seating areas. See Smokefree Status of Restaurants and Bars Around the World, American Nonsmokers’ Rights Foundation, Berkeley, California, October 2, 2008, http://www.no-smoke.org/pdf/internationalbarsandrestaurants.pdf

(accessed on December 10, 2008). 49. All Australian provinces except for the Northern Territories are 100% smokefree

in all bars and restaurants. See Smokefree Status of Restaurants and Bars Around the World, American Nonsmokers’ Rights Foundation, Berkeley, California, October 2, 2008, http://www.no-smoke.org/pdf/internationalbarsandrestaurants.pdf (accessed on December 10, 2008). 50. France, Hong Kong, Ireland, Iran, New Zealand, Norway and the United

Kingdom have all enacted 100% smokefree laws covering bars and restaurants. See

15 Record Extract Page 125

Smokefree Status of Restaurants and Bars Around the World, American Nonsmokers’ Rights Foundation, Berkeley, California, October 2, 2008, http://www.no-

smoke.org/pdf/internationalbarsandrestaurants.pdf (accessed on December 10, 2008). Outdoor Smoking Bans 51. More than 575 local jurisdictions have passed ordinances banning smoking in

outdoor areas. See 2006 Surgeon General’s Report at page 633. 52. These outdoor smoking bans “reflect a growing movement toward banning

smoking in outdoor public places.” See 2006 Surgeon General’s Report at page 633. There is No Risk-Free Level of Exposure of Secondhand Smoke 53. The scientific evidence indicates that there is no risk-free level of exposure to

secondhand smoke. See 2006 Surgeon General’s Report at page 11. 54. Eliminating smoking in indoor spaces fully protects nonsmokers from exposure to

secondhand smoke. See 2006 Surgeon General’s Report at page 11. 55. Separating smokers from nonsmokers, cleaning the air, and ventilating buildings

cannot eliminate exposures of nonsmokers to secondhand smoke. See 2006 Surgeon General’s Report at page 11. Argument I. THIS HONORABLE COURT SHOULD TAKE JUDICIAL NOTICE OF THE 2006 SURGEON GENERAL’S REPORT ON THE HEALTH CONSEQUENCES OF SECONDHAND SMOKE AND OTHER AUTHORITIES CITED IN THE SECTION OF THIS MOTION ENTITLED “FACTS CONCERNING THE HEALTH CONSEQUENCES OF SECONDHAND SMOKE” SINCE THESE FACTS ARE “GENERALLY KNOWN WITHIN THE TERRITORIAL JURISDICTION OF THE TRIAL COURT” AND ARE “CAPABLE OF ACCURATE AND READY DETERMINATION BY RESORT TO SOURCES WHOSE ACCURACY CANNOT REASONABLY BE QUESTIONED.”

16 Record Extract Page 126

This Honorable Court should take judicial notice of the 2006 Surgeon General’s Report on the Health Consequences of Secondhand Smoke and other authorities cited in the section of this motion entitled “Facts Concerning the Health Consequences of Secondhand Smoke” since these facts are “generally known within the territorial jurisdiction of the trial court” and are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Maryland Rule 5201 (b) states that “[a] judicially noticed fact must not be subject to reasonable disputed in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Maryland Rule 5-201 (d) provides that “[a] court shall take judicial notice if requested by a party and supplied with the necessary information.” Maryland Rule 5-201 (f) states that “[j]udicial notice may be taken at any stage of the proceeding.” Maryland Rule 5-201 (e) states that “[u]pon timely request, a party is entitled to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.” In Shimp v. New Jersey Bell Telephone Company, 368 A.2d 408, 413-14 (Superior Court of New Jersey, Chancery Division 1976), the court stated that “[w]here a matter is generally accepted by mankind as true and is capable of ready demonstration by means commonly recognized as authoritative, the court may use that matter as an aid in its consideration.” In determining whether judicial notice should be taken, the Court may consider “federal and state statutes and regulations, municipal ordinances, government reports, agency rules and regulations, Surgeon General’s Reports, medical and scientific reports and journals as well as various other sources

17 Record Extract Page 127

which the Court is of the opinion are reliable.” U.S. v. Sauls, 981 F. Supp. 909, 920 (D. Md. 1997). A. Courts have Taken Judicial Notice of Reports of the Surgeon General concerning Secondhand Smoke. Several courts have taken judicial notice of reports of the Surgeon General concerning secondhand smoke. In Matter of Perra, 827 N.Y.S. 2d 587, 592-93 (N.Y. Supreme Ct., Oneida Cty. 2006), the court stated that the 2006 Surgeon General’s report is a source of indisputably reliable scientific facts; furthermore, the court notices this fact as a well-known, well-publicized fact relating to human life. The Surgeon General's report is a document created by the Office of the Surgeon General and the United States Department of Health and Human Services. The report collects and analyzes the vast amount of research, both past and current, performed in the area of tobacco smoking and its effects on various aspects of health. The Surgeon General has released its report documenting the health effects of tobacco smoke since 1977. Since that time, the Surgeon General's report has been much discussed and its findings much publicized in the years since, such that no reasonable person could state their lack of awareness as to the deleterious effects of tobacco smoking. Indeed, the findings of the Surgeon General are so well respected and well publicized that other nations, such as Great Britain, base their antismoking laws on the Surgeon General's reports. In Fisher v. Caruso, 2006 U.S. Dist LEXIS 67634 at *40-41, the court took judicial notice of the Surgeon General’s 2006 Report on secondhand smoke,2 specifically, the Surgeon General’s conclusion that “ventilation is insufficient to address the health risks posed by ETS [secondhand smoke].” Therefore, the Fisher court acknowledged the Report’s

conclusion that “separating smokers and nonsmokers in the same airspace is not
2

The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Coordinating Center for Health Promotion, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006 [hereinafter “the 2006 Surgeon General’s Report”]. 18 Record Extract Page 128

effective, nor is air cleaning or a greater exchange of indoor with outdoor air.” Id. at •41. Finally, the Fisher court held that “having separately ventilated areas for smoking may not offer a satisfactory solution to reducing exposures [to smoky air]. Id. Several other courts, Hicks v. Corrections Corporation of America, 2009 U.S. Dist. LEXIS 83158, *15 (W.D. La. 2009); Sivori v. Epps, 2009 U.S. Dist. LEXIS 24231, *20 (S.D. Miss. 2009); Ware v. Morehouse Parish Detention Center, 2008 U.S. Dist. LEXIS 105244, •16 (W.D. La. 2008); Folse v. Jones, 2008 U.S. Dist. LEXIS 96527, *25 (W.D. La. 2008); Aspinall v. Phillip Morris Companies, Inc., 813 N.E. 2d 476, 482 (Mass. 2004) and Reynolds v. Bucks, 833 F. Supp. 518, 520 (E.D. Pa. 1993), have taken judicial notice of Reports of the Surgeon General concerning the dangers of secondhand smoke. In Shimp, a case from 1976, the court took judicial notice of “the toxic nature of cigarette smoke and its well known association with emphysema, lung cancer and heart disease, citing a report of the Department of Health, Education and Welfare from 1975 entitled “The Health Consequences of Smoking” and the 1972 Surgeon General’s Report also titled “The Health Consequences of Smoking.” [emphasis added]. Shimp, 368 A.2d at 414. The Shimp court cited the 1972 Surgeon General’s report for its finding that a burning cigarette contaminates the air with ‘sidestream’ smoke which comes from the burning cone and mouthpiece of the cigarette between puffs as well as with the smoke exhaled by the smoker. The presence of this smoke in the air not only contributes to the discomfort of nonsmokers, but also increases the carbon monoxide level and adds tar, nicotine and the oxides of nitrogen to the available air supply. These substances are harmful to the health of an exposed person particularly those who have chronic coronary heart or broncho pulmonary disease. [emphasis added]. Id. In Shimp, the court concluded that The evidence is clear and overwhelming. Cigarette smoke contaminates and pollutes the air, creating a health hazard not merely to the smoker but 19 Record Extract Page 129

to all those around her who must rely upon the same air supply. The right of an individual to risk his or her own health does not include the right to jeopardize the health of those who must remain around him or her in order to properly perform the duties of their jobs. The portion of the population which is especially sensitive to cigarette smoke is so significant that it is reasonable to expect an employer to foresee health consequences and to impose upon him a duty to abate the hazard which causes the discomfort. I order New Jersey Bell Telephone Company to do so. Id. at 415-16. As an aside, the defendant in Shimp, New Jersey Bell Telephone Company already had a rule that employees could not smoke cigarettes around the telephone equipment. The court observed that “[t]he rationale behind the rule [was] that the machines are extremely sensitive and [could] be damaged by the smoke.” Id. at 416. In response to this rationale, the court found that Human beings are also very sensitive and can be damaged by cigarette smoke. Unlike a piece of machinery, the damage to a human is all too often irreparable. If a circuit or wiring goes bad, the company can install a replacement part. It is not so simple in the case of a human lung, eye or heart. The parts are hard to come by, if indeed they can be found at all. A company which has demonstrated such concern for its mechanical components should have at least as much concern for its human beings. Plaintiff asks nothing more than to be able to breathe the air in its clear and natural state. Accordingly, I order defendant New Jersey Bell Telephone Company to provide safe working conditions for plaintiff by restricting the smoking of employees to the nonwork area presently used as a lunchroom. No smoking shall be permitted in the offices or adjacent customer service area. Id. Thus, this Court should take judicial notice of the 2006 Surgeon General’s Report on the Health Consequences of Secondhand Smoke and other authorities cited in the section of this motion entitled “Facts Concerning the Health Consequences of Secondhand Smoke” since these facts are “generally known within the territorial jurisdiction of the trial court” and are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

20 Record Extract Page 130

Record Extract Page 131

Record Extract Page 132

and Conditions Section, Paragraph 3 – Perpetual Use and Occupancy, Section (d) – Authorized Use of Premises. 3. The Court has taken judicial notice of facts contained in the 2006 Surgeon

General’s Report, however, since the filing of that Report, the Surgeon General has issued another Report that updates the 2006 Report.

The 2010 Surgeon General’s Report 4. On December 9, 2010, Dr. Regina Benjamin, the current United

States Surgeon General, issued yet another Surgeon General’s Report on smoking. See U.S. Department of Health and Human Services. How

Tobacco Smoke Causes Disease - The Biology and Behavioral Basis for Smoking-Attributable Disease: A Report of the Surgeon General. Atlanta, Georgia: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2010 [hereinafter “the 2010 Surgeon General’s Report”]. 5. The 2010 Surgeon General’s Report “explains beyond a shadow of

a doubt how tobacco smoke causes disease, validates earlier findings, and expands and strengthens the science base” and calls the data contained in this Report “irrefutable.” Id. at Foreward. 6. Moreover, the 2010 Surgeon General’s Report states the harmful effects of smoking do not end with the smoker. Every year, thousands of nonsmokers die from heart disease and lung cancer, and hundreds of thousands of children suffer
2 Record Extract Page 133

from respiratory infections because of exposure to secondhand smoke. There is no risk-free level of exposure to tobacco smoke, and there is no safe tobacco product. Id. 7. The 2010 Surgeon General’s Report also stated In 1964, the Surgeon General released a landmark report on the dangers of smoking. During the intervening 45 years, 29 Surgeon General’s reports have documented the overwhelming and conclusive biologic, epidemiologic, behavioral, and pharmacologic evidence that tobacco use is deadly. . . . This new report also substantiates the evidence that there is no safe level of exposure to cigarette smoke. When individuals inhale cigarette smoke, either directly or secondhand, they are inhaling more than 7,000 chemicals: hundreds of these are hazardous, and at least 69 are known to cause cancer. The chemicals are rapidly absorbed by cells in the body and produce disease-causing cellular changes. . . . There is no safe level of exposure to tobacco smoke. Every inhalation of tobacco smoke exposes our children, our families, and our lived ones to dangerous chemicals that can damage their bodies and result in life-threatening diseases such as cancer and heart disease. Id. at Preface. 8. are: 1. “Low levels of exposure, including exposures to secondhand tobacco smoke, lead to a rapid and sharp increase in endothelial dysfunction and inflammation, which are implicated in acute cardiovascular events and thrombosis;” Id. at 9. 2. “Oxidative stress from exposure to tobacco smoke has a role in the pathogenetic process leading to chronic obstructive pulmonary disease;” Id. at 11. 3. “Exposure to cigarette smoke carcinogens leads to DNA damage and subsequent mutations in TP53 and KRAS in lung cancer.” Id. at 304.
Argument 3 Record Extract Page 134

Among the major conclusions of the 2010 Surgeon General’s Report

I. THIS HONORABLE COURT SHOULD TAKE JUDICIAL NOTICE OF THE 2010 SURGEON GENERAL’S REPORT ON THE HEALTH CONSEQUENCES OF SECONDHAND SMOKE SINCE THESE FACTS ARE “GENERALLY KNOWN WITHIN THE TERRITORIAL JURISDICTION OF THE TRIAL COURT” AND ARE “CAPABLE OF ACCURATE AND READY DETERMINATION BY RESORT TO SOURCES WHOSE ACCURACY CANNOT REASONABLY BE QUESTIONED.” This Honorable Court should take judicial notice of the 2010 Surgeon General’s Report on the health consequences of secondhand smoke since these facts are “generally known within the territorial jurisdiction of the trial court” and are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Maryland Rule 5-201 (b) states that “[a] judicially noticed fact must not be subject to reasonable disputed in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Maryland Rule 5-201 (d) provides that “[a] court shall take judicial notice if requested by a party and supplied with the necessary information.” Maryland Rule 5-201 (f) states that “[j]udicial notice may be taken at any stage of the proceeding.” Maryland Rule 5-201 (e) states that “[u]pon timely request, a party is entitled to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.” In Shimp v. New Jersey Bell Telephone Company, 368 A.2d 408, 413-14 (Superior Court of New Jersey, Chancery Division 1976), the court stated that “[w]here a matter is generally accepted by mankind as true and is capable of ready demonstration by means commonly recognized as authoritative, the court may use that matter as an aid in its consideration.” In determining whether judicial notice should be taken, the Court may consider “federal and state statutes and regulations, municipal ordinances, government reports, agency rules and

4 Record Extract Page 135

regulations, Surgeon General’s Reports, medical and scientific reports and journals as well as various other sources which the Court is of the opinion are reliable.” U.S. v. Sauls, 981 F. Supp. 909, 920 (D. Md. 1997). A. Courts have Taken Judicial Notice of Reports of the Surgeon General concerning Secondhand Smoke. Several courts have taken judicial notice of reports of the Surgeon General concerning secondhand smoke. In Matter of Perra, 827 N.Y.S. 2d 587, 592-93 (N.Y. Supreme Ct., Oneida Cty. 2006), the court stated that the 2006 Surgeon General’s report is a source of indisputably reliable scientific facts; furthermore, the court notices this fact as a well-known, well-publicized fact relating to human life. The Surgeon General's report is a document created by the Office of the Surgeon General and the United States Department of Health and Human Services. The report collects and analyzes the vast amount of research, both past and current, performed in the area of tobacco smoking and its effects on various aspects of health. The Surgeon General has released its report documenting the health effects of tobacco smoke since 1977. Since that time, the Surgeon General's report has been much discussed and its findings much publicized in the years since, such that no reasonable person could state their lack of awareness as to the deleterious effects of tobacco smoking. Indeed, the findings of the Surgeon General are so well respected and well publicized that other nations, such as Great Britain, base their antismoking laws on the Surgeon General's reports. In Fisher v. Caruso, 2006 U.S. Dist LEXIS 67634 at *40-41, the court took judicial notice of the Surgeon General’s 2006 Report on secondhand smoke,1 specifically, the Surgeon General’s conclusion that “ventilation is insufficient to address the health risks posed by ETS [secondhand smoke].”
1

Therefore, the Fisher court acknowledged the Report’s

The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Coordinating Center for Health Promotion, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006 [hereinafter “the 2006 Surgeon General’s Report”]. 5 Record Extract Page 136

conclusion that “separating smokers and nonsmokers in the same airspace is not effective, nor is air cleaning or a greater exchange of indoor with outdoor air.” Id. at •41. Finally, the Fisher court held that “having separately ventilated areas for smoking may not offer a satisfactory solution to reducing exposures [to smoky air]. Id. Several other courts, Hicks v. Corrections Corporation of America, 2009 U.S. Dist. LEXIS 83158, *15 (W.D. La. 2009); Sivori v. Epps, 2009 U.S. Dist. LEXIS 24231, *20 (S.D. Miss. 2009); Ware v. Morehouse Parish Detention Center, 2008 U.S. Dist. LEXIS 105244, •16 (W.D. La. 2008); Folse v. Jones, 2008 U.S. Dist. LEXIS 96527, *25 (W.D. La. 2008); Aspinall v. Phillip Morris Companies, Inc., 813 N.E. 2d 476, 482 (Mass. 2004) and Reynolds v. Bucks, 833 F. Supp. 518, 520 (E.D. Pa. 1993), have taken judicial notice of Reports of the Surgeon General concerning the dangers of secondhand smoke. In Shimp, a case from 1976, the court took judicial notice of “the toxic nature of cigarette smoke and its well known association with emphysema, lung cancer and heart disease, citing a report of the Department of Health, Education and Welfare from 1975 entitled “The Health Consequences of Smoking” and the 1972 Surgeon General’s Report also titled “The Health Consequences of Smoking.” [emphasis added]. Shimp, 368 A.2d at 414. The Shimp court cited the 1972 Surgeon General’s report for its finding that a burning cigarette contaminates the air with ‘sidestream’ smoke which comes from the burning cone and mouthpiece of the cigarette between puffs as well as with the smoke exhaled by the smoker. The presence of this smoke in the air not only contributes to the discomfort of nonsmokers, but also increases the carbon monoxide level and adds tar, nicotine and the oxides of nitrogen to the available air supply. These substances are harmful to the health of an exposed person particularly those who have chronic coronary heart or broncho pulmonary disease. [emphasis added]. Id. In Shimp, the court concluded that

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The evidence is clear and overwhelming. Cigarette smoke contaminates and pollutes the air, creating a health hazard not merely to the smoker but to all those around her who must rely upon the same air supply. The right of an individual to risk his or her own health does not include the right to jeopardize the health of those who must remain around him or her in order to properly perform the duties of their jobs. The portion of the population which is especially sensitive to cigarette smoke is so significant that it is reasonable to expect an employer to foresee health consequences and to impose upon him a duty to abate the hazard which causes the discomfort. I order New Jersey Bell Telephone Company to do so. Id. at 415-16. As an aside, the defendant in Shimp, New Jersey Bell Telephone Company already had a rule that employees could not smoke cigarettes around the telephone equipment. The court observed that “[t]he rationale behind the rule [was] that the machines are extremely sensitive and [could] be damaged by the smoke.” Id. at 416. In response to this rationale, the court found that Human beings are also very sensitive and can be damaged by cigarette smoke. Unlike a piece of machinery, the damage to a human is all too often irreparable. If a circuit or wiring goes bad, the company can install a replacement part. It is not so simple in the case of a human lung, eye or heart. The parts are hard to come by, if indeed they can be found at all. A company which has demonstrated such concern for its mechanical components should have at least as much concern for its human beings. Plaintiff asks nothing more than to be able to breathe the air in its clear and natural state. Accordingly, I order defendant New Jersey Bell Telephone Company to provide safe working conditions for plaintiff by restricting the smoking of employees to the nonwork area presently used as a lunchroom. No smoking shall be permitted in the offices or adjacent customer service area. Id. Thus, this Court should take judicial notice of the 2010 Surgeon General’s Report on the health consequences of secondhand smoke since these facts are “generally known within the territorial jurisdiction of the trial court” and are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

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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 I OF VII Upper Marlboro, Maryland Wednesday, August 17th, 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 Direct 1-25 1-91 1-114 1-133 1-203

I N D E X

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P R O C E E D I N G S MR. GOECKE: Greenbelt Homes, Inc. MR. SZYMKOWICZ: Good morning, Your Honor. Appearing with CAL10-06047, Schuman versus

J. P. Szymkowicz on behalf of Mr. Schuman. me is Rita Turner as well. THE COURT: MR. FISHER: Good morning.

Good morning, Your Honor.

Jason

Fisher and Mike Goecke here on behalf of Greenbelt Homes, Inc. MR. POPOVIC: Popovic, pro se. THE COURT: wrong tables. MR. SZYMKOWICZ: THE COURT: I got here second. I see we have managed to sit at the Good morning, Your Honor. Darko

No Jury, don't worry about it.

Preliminarily, there is a motion to allow the filing of post-trial briefs for closing argument and entry of final order. Any objection to that? We do, Your Honor. We think the

MR. FISHER:

Court is well aware of the facts presented in the case; will be able to adjudicate and make a decision. If Your

Honor believes it's proper at the close of the case to anticipate that; you'll need some extra time, and delay everything, and that requires parties to submit post-trial

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memorandums and briefs on legal issues on evidence presented at trial; we think is a little bit presumptious. We think Your Honor can certainly reserve on the issue and decide that when the time comes, but to decide today at this point before we he have even started opening statements, that would require parties to sumbit briefs, trial memorandums and increase costs; delay this matter even further after it was set for trial sometime ago. Again, Your Honor, we object to it. improper. We also think unorthodox. We think it's This was filed less

than 48 hours ago, and you know, typical motion requires -- allows parties to review it and respond. THE COURT: novel in Maryland. I'll reserve on it. The issues raised are reasonably

I understand the late filing question. We will see how things develop. We

have got four days to decide. MR. SZYMKOWICZ: Your Honor, the only problem

with reserving is that we would normally be preparing for oral argument toward the end of the presentation of evidence, and you know, I think that our time together would be better spent if we know that we are not going to go through closing arguments, and deal with that a month-and-a-half from now. And with regard to the delay on this, Mr. Schuman is the one that suffers from the delay.

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THE COURT:

It strikes me that delay in this

matter would inure to the benefit of the Defendant, but I'll get a feel for it within the next 48 hours probably. MR. SZYMKOWICZ: Thank you, Your Honor.

The second thing is we filed a -- if I may approach, Your Honor? This morning a Motion for Judicial Notice of the 2010 report. As the Court is aware, when we filed our

original Motion for Judicial Notice at the beginning of the litigation, there was no 2010 report because it hadn't been published yet. The Court took Judicial Notice of

2006, but our motion didn't encompass that because the report didn't exist. It's just a few paragraphs from the

report, and we ask the Court to take judicial notice. THE COURT: Mr. Fisher? MR. SZYMKOWICZ: This is included in the same You had a chance to look at this,

judicial notice motion that was filed in the Court of Special Appeals, so there's nothing new there. I cut and

pasted the sections from 2010, from that motion, into this one; so, there should be no surprise at all. MR. FISHER: Your Honor, that would be the

motion that was denied by the Court of Special Appeals, I would note, but, Your Honor, I have not thoroughly reviewed it. I'm presuming, as Mr. Szymkowicz has

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represented, this is the same motion denied by the Court of Special Appeals; probably similar to the one you reviewed in relation to the 2006 report. Again, Your Honor, we would object to the presumption, again, that you take Judicial Notice of the Surgeon General's Report; take judicial notice of the fact that there is a Surgeon General's Report, that we have no objection to, but, Your Honor, to, again, take judicial notice of facts and findings that may or may not be relevant to this case, again, Your Honor, prematurely, we believe is improper. We don't think it's necessary for

the Court to take Judicial Notice of facts and arguments that he's going to present at trial at this stage. Your

Honor will have the opportunity, during trial, to review it and make a prudent decision. Again, as we raised in

our opposition to his original motion, there is a number of issues in the Surgeon General's Report. Even when he's

quoted there, that may or may not be relevant to this case. We don't believe they're relevant. We don't

believe they're applicable to this specific Defendant. Mr. Szymkowicz and the Plaintiff in this case, through these motions and similar filings that have been made within the past week, Your Honor, are trying to make this case about more than it is. Plaintiff against two Defendants. This is about one It's not a trial of

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smoking in the State of Maryland, and again, Your Honor, we believe it's improper for the Court, at this point, and not necessary for the Court to take Judicial Notice of something that really, Your Honor, may not be relevant to the case at all. MR. SZYMKOWICZ: Your Honor, it's only two

pages, and two, two, three, five specific paragraphs that we're seeking judicial notice of. THE COURT: I don't recall specifically. I

think the Court of Special Appeals declined to take Judicial Notice. It was something that was not presented

at the prior hearing, so they weren't going to add to their record something that wasn't committed into evidence at trial, but in any event, I'll reserve on this at the moment. I'll take a look. I will also note for everybody's benefit, when I decided to admit the Plaintiff's 16 and 17 the other day or take Judicial Notice, it doesn't escape me; I'm sure it doesn't escape anybody in here, we don't have a Jury of six people here. It's just me, and I think in terms of

relevancy, I don't think I have a problem weeding out whatever is irrelevant, but I'll hold on this; is the first time I have seen it; so, I'll take a look at it. Okay. Any other preliminary matters? Not from us, Your Honor.

MR. SZYMKOWICZ:

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MR. GOECKE: THE COURT:

No, Your Honor. No opening statements? Your Honor, you heard already

MR. SZYMKOWICZ:

two or three days of testimony in the prior case in the prior hearing. We are not going to bother you with a We are just going to give the We are going

lengthy opening statement.

Court a road map of where we are going to. to present six or seven witnesses:

Frank Gervasi, the

contractor that did the work that allegedly broke the seals between the units; Carolyn and Kevin Hammett were the couple that lived near the Popovics' on the other side. The Court heard testimony from the Hammetts before. Dory Ipolito is coming out of

They are very limited.

retirement from the beach today to join us to talk about her experiences with the Popovics. on the other side of the Popovics. Popovic, Ipolito. She, of course, lives It goes Schuman,

Mr. Schuman is going to testify, and

our two experts are Mr. Repace, of who the Court is well aware -- Mr. Repace testified originally. expert is Our second

Mr. Munzer, the former President of the

American Lung Association, the Director of Pulmonology at Adventist Hospital for over 35 years. They are witnesses.

We may call GHI, the corporate designee, as a witness as well. With regard to what we are going to prove, we

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believe that the nuisance clause, at issue, is not subject to the same stringent requirements as if this had happened in a single-family home within a cooperative, and the reason is, under Maryland law, nuisance, you have to prove certain things. In this case, there's a contract,

Member's Handbook and the bylaws which lessen that standard for us, and that is that anything that's a nuisance, annoyance, inconvenience or causes damage to the members of the cooperative violates the nuisance clause. I think that's one thing in the first hearing everybody involved sort of overlooked; that this was a contractual nuisance clause; not a common-law nuisance clause. law may be a higher burden to it. we have such a high burden. Common

We don't believe that

If the conduct is annoying or

inconveniences Mr. Schuman, it violates the contract, and that's why we are here. This is a breach of contract case

in addition to the common-law counts. The other thing that is important is GHI is a landlord. For some reason, when GHI was established in

the Roosevelt Administration, the governing documents creating the cooperative explicitly -- and courts have held that GHI is the landlord. The members are the -- or

the residents are the tenants to GHI; has duties that they owe to Mr. Schuman, and that's why the Business Judgment Rule that was cited ad nauseum the first time really

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doesn't apply.

There is exceptions that we cited before The Court didn't get to

the Court of Special Appeals.

that issue, so we don't how they would have decided on that, but basically, the exceptions to the Business Judgment Rule applied because GHI -- separate duties to Mr. Schuman as a landlord. Finally, there was a case that just came out of D.C. that we cited in our reply to GHI's Opposition to Amend the Scheduling Order to allow Dr. Munzer' testimony, and that was filed at the end of May. I think it was

filed on May 27th, and I'll briefly go into that case. That's called the Rogue State's case, S-T-A-T-E-S. States, unfortunately, was put out of business. go there. Rogue

I used to

It was a Hamburger restaurant which had the

misfortune of opening up next to the Steptoe & Johnson's law firm, and the Rogue States was in one building; Steptoe was in the other. The fumes from the hamburger

restaurant were traveling outside the building and somehow venting back into the Steptoe building, and it was causing the lawyers in the law firm to suffer annoyance, inconvenience, the same things we have here, and the Court described the odor as an intense and noxious odor of burnt, or smell of burnt meat, grease and smoke causing headaches, dizziness and nausea, and that case was BP 1330 Connecticut Avenue, LLC versus Burger, 1300 Connecticut

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Avenue, LLC, trading as Rogue States, D.C. Superior Court. D.C. Superior Court, October 12th, 2010, in rendering its decision, the Court stated in that case that "The Plaintiff should expect the same level of noise, odor and inconvenience as anyone else in the workplace in Washington, D.C., but they should not have to expect a lot more than that or even any more than that. Occasional

interference, annoyance or discomfort is certainly part of life in the big city, as it's been put, but enduring much more of that is unacceptable." That was on page 18 of the With

transcript of the hearing on October the 12th, 2010.

relevance to this case, the Court found that the Plaintiff proved a private nuisance, and they, the Court, ordered that the restaurant abate the nuisance. And the sad thing for the restaurant owner, this poor guy goes and opens up his business; spends a lot of money building this out. I thought it was a pretty good

restaurant, carry out, but he was put out of business because his actions, unfortunately, were causing an effect to his neighbor, and something that, you know, I think, that's a pretty drastic remedy, but it's probably the only remedy that the Court had to do because, you know, there was evidence that it was hurting somebody else, and I think that secondhand smoke is more dangerous than the smell of cooking odors.

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One thing that the Court ordered, one thing that the Court found on page nineteen of that transcript, it said, "While the testimony of various expert witnesses was helpful to the Court, expert testimony is certainly not required to prove a nuisance," and that's one thing that we have been saying all along. We should be sufficient standing by with Mr. Schuman and Ms. Ipolito's comments that secondhand smoke from the Popovic house is causing them annoyance and inconvenience. It smells bad; kind of drives them crazy;

makes them sick, but I don't think we even need to get into the Repace report or Dr. Munzer's testimony. We are

doing that to fully present our case, but I don't think it's necessary because and I think that the Judge in the D.C. Superior Court just got it right. case. It's a nuisance

If this were Metallica being played at very high

volume at Midnight, we wouldn't need to have an audiologist come in and measure the sound. We wouldn't

need to have somebody testify as to the medical impact because there may not be a medical impact on somebody that listens to Metallica unwillingly at Midnight if it annoys or inconveniences them, which loud music undoubtedly would do. There would be no need for expert testimony. And in Rogue States, I think the Court hit it on We heard expert testimony. Of course, Steptoe

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& Johnson brought in all their experts; brought in their twenty lawyers, whatever they had; they proved their case, but the Court found they didn't need to do that. sufficient just going forward. So we are going to present our case both ways. Out of an abundance of caution, we are going to hear the personal impact and the subjective impact that Mr. Schuman, and Dory Ipolito and the Hammetts have found, and then we are going to back that up with objective testimony from Mr. Repace and Dr. Munzer. On that, I'll yield the floor. MR. GOECKE: Good morning, again. Michael It was

Goecke with my colleague, Jason Fisher, on behalf of Greenbelt Homes, Inc. We are here with Gretchen Overdurff, who has been the general manager for seventeen years. O-V-E-R-D-U-R-F-F. Your Honor, we are here today; there are two claims, only two claims pending against Greenbelt Homes, Count Two, common-law action, breach of the implied covenant of quiet enjoyment; Count Five is a claim for negligence. I think it's very interesting that Opposing Counsel did not talk about those two claims in his opening statement. This is not a nuisance claim against Greenbelt Gretchen

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Homes, Inc.

This is breach of the implied covenant of Those are the

quiet enjoyment and a negligence claim.

only two claims pending against Greenbelt. Your Honor, ultimately, this case is about what is reasonable. their home? their yard? What is it reasonable for someone to do in

What is it reasonable for someone to do in In this context, in a cooperative, this a They are tied together. What is reasonable

community in garden style homes.

They share walls with their neighbors. in that context?

Has there been an unreasonable

interference with Mr. Schuman's use and enjoyment of his property? Has Greenbelt Homes done anything unreasonable? Did they not act Did they not

Was there a duty that they breached?

like a reasonable cooperative should have? act like a reasonable landlord should have?

Your Honor, Mr. Schuman is seeking $300,000.00 in compensatory damages against Greenbelt Homes for both the negligence claim and the implied covenant of quiet enjoyment claim. On top of that, he's seeking an

additional $300,000.00 for the punitive damages for the malice, ill will; for the wrongful conduct he claims Greenbelt imposed upon him. The evidence will not support his case. The

evidence will clearly show that -- again, will not be reliable. If Your Honor rules in Greenbelt's favor, that

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will dispose of this matter.

If Your Honor finds that Mr.

Schuman is able to supply a prima facie evidence, then we will present much evidence to establish they are not liable, and affirmative defenses to this claim. Ms. Overdurff, a seventeen year general manager of Greenbelt Homes, who manages this property, this community of 1600 units with various ages of people with varied backgrounds, with all kinds of problems, and old construction, and severe weather sometimes, and she runs the place very well. well. You are going to meet Sylvia Lewis, who is a retired woman who chaired the Member Complaints Panel that saw Mr. Schuman's complaint; heard the complaint that Mr. Schuman filed. You are going to meet Tokey Boswell, current President of the Greenbelt Homes Board. You are going to like these people, nice people, good people, reasonable people, and they take their time to do what is best for the community, and that's what has drove their decision making and their actions, actions in this context. Your Honor, the evidence is going to show from the beginning, Greenbelt Homes took this case and took Mr. Schuman's complaints very serious when he first Her assistant runs the place very

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complains in 1996.

They immediately responded; They met with Mr. Schuman, with They

immediately investigated.

Mr. and Mrs. Popovic, with Dory Ipolito.

investigated units, sealed the units; even went so far as to hire an industrial hygienist to come in and sample the air to make sure they did the job right, and that record found, guess what, no smoke in the unit. A copy of that report was given to Mr. Schuman and to Ms. Ipolito, and neither one of them complained about the way that was conducted or about the findings of that report. In fact, neither one of them complained for

more than eleven years, nearly twelve years. Coincidentally, I realize this is slightly controversial, but you can't help but notice a few months before Mr. Schuman started complaining again, he did extensive renovations in his unit. walls; took them down to the studs. He tore down the Evidence is going to

show the areas that he renovated are places he's complaining of smoke now. Greenbelt still took this

seriously; still mediated meetings despite -- with the Popovics. When that proved unsuccessful to the neighbors, they convened a Members Complaint Panel, which is the next step in the dispute resolution process, and the evidence is going to talk a little bit about that process and how

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they complied with that process here. All throughout this, Your Honor, the evidence will show that Mr. Schuman repeatly thanked GHI for their efforts; thanked them for their concerns; thanked them for their attention to detail; thanked them for concrete acitivity. If he was upset about the way Greenbelt was

behaving, he sure didn't express it during the process. It was only when he disagreed with their final result that he had any exception or any complaints about what it was that they did. The evidence is not only going to show

Greenbelt acted reasonably, it's going to show there was no unreasonable interference with Mr. Schuman's unit. this Court already ruled on October -- September 1st of 2010, after the preliminary Injunction hearing, Mr. Schuman suffered no medical injury as a result of his exposure to secondhand smoke. And despite the amount of time and the effort that the Plaintiff is going to put with his experts, with his evidence, at the end of the day, the Plaintiff will not be able to show conclusively any physical or medical injury from secondhand smoke. The evidence is also going As

to show that Mr. Schuman never had to vacate his unit; never had to go stay with a friend. to a hotel. He stayed in his unit. He did not have to go

It will also show that he took minimal, if any,

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steps to mitigate his exposure to secondhand smoke, and I think it's important to keep that in context, Your Honor. We all have duties. We all have obligations. One of

Mr. Schuman's duties and obligations is to take efforts to protect himself. He chose not to do that. He feels that

he's not required to. window.

He should not have to close his

He should not use a fan to blow the air in the He should not have to buy a filter to

other direction.

end his litigation on secondhand smoke. Finally, the evidence will show in March 2010, this case took a sad and very dramatic turn of events when Mr. Popovic's wife was diagnosed with a brain tumor, and since that time, the Popovics have stopped smoking inside their unit. They no longer smoke inside their unit. Keep in mind that the facts

That's since March of 2010.

giving rise to this litigation began in January 2009. January 4th, 2009, the evidence will show, is the first day that Mr. Schuman here complained to the Popovics about their smoking again; so, we have got from January until -2009 until March 2010 where there's even a potential for secondhand smoke to come through the walls and infiltrate Mr. Schuman's unit. After March of 2010, all we had is, the evidence will show, is two to five cigarettes being smoked in the evening, weather permitting, for an hour or two at the

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most.

That's a reasonable activity.

That's a reasonable

thing to do on your property, and any byproduct of that secondhand smoke or those cigarettes does not constitute unreasonable interference with Mr. Schuman's use and enjoyment of his property regardless of how horrible tobacco and smoking may be; regardless of how many people get sick from cancer. What this case is all about is two

to five cigarettes he is now smoking in his front yard that everyone should have a right to do should they so choose. Again, Your Honor, just to kind of recap some of the players here, Greenbelt has been around a long time; Mr. Szymkowicz alluded to this; was created either during or because of the Roosevelt Administration, beautiful community, 1600 units. I think you are going to hear from

both sides; everyone that lives there, happiness, pleasantness; they take good care; but to think about something that is that old, that well maintained, that vibrant, achieving what it was set out to do, it's got to give everyone associated a really good feeling. If you go where my father was raised in Detroit, Michigan, you won't find that there. We look forward to presenting our case. Thank you, Your Honor. THE COURT: Mr. Popovic.

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MR. POPOVIC:

Well, Your Honor, I believe that

everybody has a right to fight for something or against something, and I think that it's quite legitimate to fight against famine in the world, to fight against alcoholism, to fight against smoking because smoking is not a good thing, and although I think it's a little bit overblown, it's not just about the health. It's also about politics

and policy, but anyway, fight against smoking is legitimate, and I believe that everybody has that right. But in this case, I think that everything is It's the wrong place. It's the wrong time. If you It's

the wrong example, completely wrong example.

compare, Mr. Szymkowicz said, smoke from one or two cigarettes with the smoke and the exhausts from some hamburger joint which works for hours and hours I suppose during the day, those are two completely different things, and as Mr. Goecke said, we were smoking at that house together with our guests for thirteen years without any complaints; without a word about smoking. Then when we

stopped smoking inside the unit, when my wife unfortunately got ill, we got complaints. understand. I couldn't

Everybody stopped smoking inside since March

last year, and I decreased my smoking to one or two cigarettes, Your Honor, every evening; now, for the last couple of months, maybe one or two cigarettes in evening

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hours, and if that is really that dangerous for anybody's health, I will stop smoking at all, but I mean, I think I should have the right that every member of Greenbelt community has; so, I think that I'm not doing anything wrong. Thank you. THE COURT: Thank you.

Call your first witness. MR. SZYMKOWICZ: THE DEPUTY CLERK: Frank Gervasi. Plaintiff's Exhibits 1

through 42 marked for identification, and Defendant Greenbelt's 1 through 79 marked for identification. (Whereupon Plaintiff's Exhibit Nos. 1 through 42 were marked for identification.) (Whereupon Defendant's Greenbelt Exhibit Nos. 1 through 79 were marked for identification.) THE DEPUTY CLERK: (Witness sworn.) THE DEPUTY CLERK: seated. Please state your first and last name and spell them for record. THE WITNESS: Frank Gervasi, G-E-R-V-A-S-I. G-E-R-V -Thank you. You may be Please raise your right hand.

THE DEPUTY CLERK: THE WITNESS:

A-S-I.

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THE DEPUTY CLERK: THE WITNESS: THE COURT:

Frank, F-R-A-N-K.

Correct. Okay. Your Honor, for housekeeping, I

MR. SZYMKOWICZ:

provided the Court, Your Honor, with a set of our exhibits. What I guess we can call the original set of That would be,

exhibits I have given to the Clerk.

presumably, the set that the witness would be testifying from. (Off the record discussion ensued.) THE COURT: That's fine. For Mr. Gervasi, we are going

MR. SZYMKOWICZ:

to be inquiring of our exhibits, only three. THE DEPUTY CLERK: THE COURT: They are all in order.

If during the course of the trial,

there is any question of comparing whatever I have got with whatever is marked; I don't anticipate a problem; if anybody has a question, feel free to take a look. MR. SZYMKOWICZ: Thank you. We provided the

electronic versions to the other side, so everybody should be operating on that. going to leave them. FRANK GERVASI, a witness produced on call of the Plaintiff, having first been duly sworn, was examined and testified as follows: The books we don't need, so we are

Record Extract Page 193

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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. capacity? A. Q. field? A.

DIRECT EXAMINATION BY MR. SZYMKOWICZ: Please state your name for the record. Frank Gervasi. What is your occupation? I'm a contractor of -- construction contractor. How long have you been employed in this

I started in Maryland in 1979, about. What training and experience do you have in this

I started in as a carpenter in 1970.

I worked I

in the Union carpentry apprenticeship program there. took courses in trade school as well back in 1970. Q. A. Do you have any licenses?

Yes, I have had a home improvement license since I have a few

1977 continuously in Maryland.

certifications as well, like lead removal and similar electric, believe it or not, and I had a builder's license for building homes in -Q. Do you have any area geographically in which you

specialize? A. I live in Greenbelt. I've lived in Greenbelt

since '78 -- since '77, actually, and I work a lot in Greenbelt.

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Q.

How many GHI houses do you think you have worked

on over the years? A. Q. Hundreds. And are you familiar with the construction of

these homes? A. Q. Very much so, yes, sir. What would be the typical things that you would

need to have; would you need to perform on these houses? A. Well, I do a lot of additions. I do a lot of

kitchens and bathrooms; any kind of renovations; whole house remodled. I have done a number of soundproofing.

You seal the wall for the soundproofing quality of it. And I build not only in GHI, but right next to GHI, five custom homes that border the GHI property. Q. What do you need to do to be authorized to

conduct work on GHI specific properties? A. Well, after you contract with your customer, you They have a

apply for permits first through GHI. permitting process.

Once you receive your GHI permit,

then you can get your necessary permits from the city and the county. Q. How often do you need to work with GHI officials

in the course of a given week? A. often. Well, some weeks, not at all, but other weeks, You routinely work with GHI.

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Q. Mr. Ralph? A.

You would work with the facilities director,

Well, he -- mostly with his director of -- his He's the

subordinate is Tom Spohney, S-P-O-H-N-E-Y.

current Director of Facilities or I forget his exact title. GHI. Q. What would be your relationship with him? How He's the ace one in that position I worked with in

would you conduct your business with him? A. Well, you apply for the permit to do whatever He only --

work with him, his office, physical plant.

he'll go through the review process, you know; make any adjustments needed, and he'll sign off on the permit with Eldon Ralph, who is his immediate boss. Q. A. Q. You spell that name? Ralph -- E-L-D-O-N, Ralph, R-A-L-P-H. Have you ever had the opportunity to work with

Gretchen Overdurff? A. Q. Somewhat; not directly too much. Did there come a time when you met the

acquaintance of Mr. Schuman? A. Q. A. Yes. When was that? We, I believe, started talking about doing

renovations in 2008, and we contracted to do the kitchen

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work in September '08, I believe. Q. Did Mr. Schuman, at that time, indicate any

oddities about his job other than renovations, standard renovation? A. Yeah, he wanted -- right up in the beginning, we

wanted to make sure the walls were sealed fully because he was concerned about smoke penetration. Q. Can you talk about the makeup of the wall

between the Schuman and Popovic unit? A. That's the common wall. Utility wall, all the

services run up through the crawl space into the pipes for conduits for the electrical work and pipes for plumbing; all run in that common wall. Q. On the other wall, again, the Schuman unit and

the unit on the other side of him which is not the Popovic unit, what kind of wall is that? A. That's plaster covered. All the walls are

plaster covered in the brick homes, but that's a brick firewall that is continuous up to the roof, but the common wall, it's not. Q. It's a frame wall.

So the wall that we are talking about is the

common wall? A. Q. Correct. Between the Popovic and Ipolito units, that

would also be a firewall?

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A. Q. A. Q.

Yes. A brick wall? Yes. So it's hard for smells or -MR. FISHER: THE COURT: Objection, Your Honor. Rephrase.

BY MR. SZYMKOWICZ: Q. What would be your interpretation of how air

would transfer from one unit to the other between two sets of walls? MR. FISHER: Objection, Your Honor. Not

qualified to testify as an expert. THE COURT: THE WITNESS: number of penetrations. I'll allow it. Go ahead.

Well, construction wise, there's a Any outlet is not sealed. The

outlet, itself, has a number of holes in it.

Pipes are

protruding, both the kitchen and bathroom at that point. THE COURT: THE WITNESS: You talking common wall or? The common wall in these homes,

there's a common wall where they run all the pipes. THE COURT: I understand that. I think his

question is to differentiate between the common wall and brick wall? THE WITNESS: The brick wall is solid. I don't

think there is any penetration except up in the attic part

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where they had a common attic that had a vent that ran clear through. In these rows of houses, which will vary

from four to eight units, you'll have a gable vent on either side. Typically, when GHI in current renovation or

even in the rehab renovation that I was part of back in the early 80's, we put ridge vents to get more air flow out of the attic, but the original construction just had a common gable vent that ran clear through. Q. A. Q. A. Have you been in the Schuman attic? Yes. What did you observe there? Well, it's a typical attic, unfinished plywood, There's open-gap flooring. You have a

one by six walls.

one by six common wall with the Popovic unit, and that one GHI had sealed at some point. I guess it was GHI because

it was silicone caulk around all the joints of the wood. The problem is when you butt two pieces of wood together, they sling up a little bit. sealed. There's a gap, so it's not

What somebody had done at some point was to seal

up those joints. Q. Is there a basement or crawl space under the

Schuman and Popovic units? A. Yes, all the GHI homes have crawl spaces. Some

have a basement, but most have just crawl space. Q. Have you been inside that crawl space in the

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Schuman unit? A. Q. A. Yes. What is down there? Well, the crawl spaces are typically not -- they

are all about the same, brick and block model of concrete pour, about four feet of head room. one end to the other. It's wide open from

It's pier footings, every interval

at low points, but other than that, it's wide open. Q. So the crawl space inside the Popovic unit,

there's no barrier of any kind between the Popovic and Schuman units? A. Q. No. Before you started on the Schuman house You already

renovations, did you notice any sealing? talked about the attic. anywhere else? A.

Did you notice any sealing

The only sealing that I noticed that may be a

little unusual is some caulk on the baseboard moldings in the kitchen dining room area. Q. When you started work on the Schuman house, tell Take me through what

me -- take me through the project. you did. A.

Well, we contracted in September of '08, and We didn't permit till after

then we developed our plans. '09.

There were a couple of things we needed to do that

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were unusual because we took down a bearing wall; bearing meaning it holds up. The floor joists run back and forth

like this; so, there's a wall he wanted to remove from the dining room and kitchen to make them one large space; so, we needed an engineer, what certifications, what type of beam that we got. We made all the requirements; we

started construction. BY MR. SZYMKOWICZ: Q. I'm showing you what has been marked as Exhibit Have you ever seen this

No. 22 for identification. before? A. Q. A.

Yeah, that's the permit from GHI. And was this permit approved? Yes, it was approved in '08. I think so. My

dates -- yeah, it was approved in '08, wasn't it? Q. A. Was that for the work that you performed? Yeah. MR. SZYMKOWICZ: Your Honor, I move Exhibit 22

into evidence as Exhibit No. 22. THE COURT: MR. FISHER: THE COURT: Any objection to No. 22? No objection, Your Honor. It will be admitted.

(Plaintiff's Exhibit No. 22, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ:

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Q.

While I'm here, I got Exhibits No. 1 and No. 2 Can you tell me what this is, No. 1?

here, photographs. A.

That's the garden side of -- that's the garden

side of 11Q and 11 -Q. A. Q. A. The Schuman and Popovic units? Right. Could you tell me what Exhibit 2 is? That would be the service side of the unit. MR. SZYMKOWICZ: Your Honor, I move Exhibits 1

and 2 for identification into evidence as Exhibits No. 1 and 2. THE COURT: MR. FISHER: THE COURT: Any objection to 1 and 2? No objection, Your Honor. It will be admitted.

(Plaintiff's Exhibit Nos. 1 through 2, previously marked for identification. were admitted into evidence.) BY MR. SZYMKOWICZ: Q. you do? A. Well, the first thing is to demolish what is Sir, now you are starting the work. What did

there; remove the old cabinets, and we took up the flooring. We removed the ceiling and wall, and installed Once your

the beam, and proceeded first with the framing.

framing is done, you get your electrician and plumber in.

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Q.

Does GHI typically inspect your work as you go

along on these kind of projects? A. Well, they can inspect at any point. Before you

close in or preinsulate, you get an inspection from GHI and from the county. Q. A. Q. A. Did you do that? Oh, yeah. Did GHI sign off on that work? Yeah, they, you know, they note that it's

acceptable, and then you proceed. Q. And did GHI in this case ever indicate that the

work was not satisfactory? A. Q. No. Did GHI ever complain that you broke any seals

that they had placed? A. Q. No. What kind of sealing was inside the Schuman

house, if you recall? A. Well, other than some caulk on the base mold,

which was probably added later because it was a little more apparent than typical. Generally, the wall, the

original wall and even the improved wall has a number of penetration points that are significant. One is the fact that the existing wall had the back to back electric service panel boxes. Got lots of

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holes in them.

Every place you put in wires has a hole

in -- this looks like a calendar, actually, by the time you get done. Meant to maintain the breaker box. They

are back to back, no sealant, no insulation, no nothing. We removed that in his home. In his home, we removed it

and put it into the closet; so, that part was eliminated. The most significant penetration point, actually, other than your usual pipes and wire openings, was in the back to back powder rooms. Now, I'm not sure

if the Popovics had a powder room, but the Schumans do. They had an exhaust fan in the ceiling of their unit. This is a very joined unit where some of them have straight walls. This is a powder closet turned into a It was when I arrived, and we

powder rooms in many cases.

renovated the powder room as well, but the biggest penetration point was the fact that both exhaust fans were joined to the same duct work; so, right after the exhaust fan in his ceiling, in Schuman's ceiling, you had a Y in the duct work. in. Absolutely nothing to keep any air going

When they turn on their fan, it's going -- some of it

is going to spill back into his fan because it's before your Luger fans. There's an internal Luger fan, an

exhaust fan, but it's not sealed real well; more reliant on the outside Luger fan; so, when we discovered that, we eliminated that joint, and we separated -- whole separate

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exhaust system for his fan, and we sealed them apart. Q. Did you notice any silicone sealing when you

started your job in the Schuman unit? A. No, I didn't see -- I didn't see any that I was There

aware of in the kitchen or in that bathroom area.

might have been some in the bathroom, but we demolished it. Q. What did you do to seal the Schuman unit to

prevent secondhand smoke from coming in from the Popovic unit? A. Everywhere there's a hole that we could see, we

sealed it, as you would not only very meticulously sealed on the inside, you know; if you look at the kitchen work and the bathroom upstairs, because this was the first phase of our work, we went upstairs and redid the bathroom two years later; so, we sealed it before we walled it up and sealed it after as well as you can -- you are looking at an open wall -- when you take down plaster, open stone from the other side; so, I'm not going into his unit to try and seal from that side. Q. Do you believe that there's anything more you

could have done to seal the units? A. Q. A. No. Why is that? Well, you are only dealing with the wall. We

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didn't deal with the bedroom at all. MR. FISHER:

In the bathroom --

Your Honor, I'm going to object. We

Mr. Szymkowicz keeps referring to the word "sealing."

are talking about caulking of the unit, that's one thing, but if we are talking about sealing from the infiltration of smoke from the other unit, which I'm unclear on that, this, I would object that this witness is not qualified with respect to that issue. THE COURT: I'll accept the testimony. It's

certainly subject to Cross-Examination. THE WITNESS: Plastering is another. BY MR. SZYMKOWICZ: Q. A. Q. Which technique did you use? Both. Did there come a time when you finished the work Well, caulking is one technique.

in the Schuman house? A. Q. A. Q. A. Q. A. Yeah. GHI inspect that? Oh, yeah. Did they give you a passing mark? Yeah. So they were satisfied with your work? Yes. MR. FISHER: Objection. Calls for speculation

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from the satisfaction. signed off on it. THE COURT:

All he has indicated is they

I'll sustain that.

BY MR. SZYMKOWICZ: Q. your work? A. Q. No. In the thirty odd years that you have been Did GHI indicate that they had any problems with

working in GHI, have they ever had any problems with your work that you are aware of? MR. FISHER: speculation. THE COURT: THE WITNESS: That you are aware of? That I'm aware of, yeah, issues Not on Objection, Your Honor. Calls for

come up; something needs to be done differently. this job, though. BY MR. SZYMKOWICZ: Q. A. Q. Have you taken care of those? Sure.

How many contractors are you aware of typically

work in GHI homes? A. Well, of the various types, I mean, again,

construction, probably six or eight, I would think. Q. So it's a pretty limited community of people

that do work in these houses?

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A. Q. A.

Yeah. Why is that? Well, I don't -- I can't speak for anybody else,

and there have been a couple kind of given the boot because they weren't up to par, and then there's an additional layer of paperwork. MR. FISHER: Your Honor, I object as to why

others do or do not work there; also not relevant to the issues here. THE COURT: Sustained.

BY MR. SZYMKOWICZ: Q. What is your reputation with GHI, if you know? MR. FISHER: THE COURT: Objection, Your Honor. GHI would have to answer that. I have no further questions.

MR. SZYMKOWICZ: THE COURT: MR. FISHER:

Cross. Thank you. CROSS-EXAMINATION

BY MR. FISHER: Q. Mr. Gervasi, you have had no specialized

training in indoor air quality? A. Q. Indoor air quality? Yeah. No.

You have never been certified as a

heating, ventilation, air conditioning specialist, have you?

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A. Q.

No, but I employ HVAC guys that are. As a matter of fact, you employ a lot of

subcontractors for the work you do in GHI homes? A. Q. A. Q. A. Q. A. Q. Yeah, you have to. Because you are not a plumber? Right. You are not a licensed plumber? Right. You are not a licensed electrician? No. I think you just indicated you are not a

licensed HVAC contractor? A. Q. No. You do work at GHI; you do work essentially as a

general contractor on these jobs, right? A. Q. Yes. You brought in -- assist people like Mr. Schuman

in coming up with addition plans for their unit, correct? A. Q. Correct. Based upon your experience, which appears to be

extensive in GHI; you have done any number of work in all different types of homes in GHI, correct? A. Q. Yes. In the work that you have done in GHI, I think

you mentioned that you worked on soundproofing of units,

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correct? A. Q. Right. When you do soundproofing, that requires

additional types of material to be used to deaden sound between units, correct? A. Q. Yes. And in doing that type of work, you research and

you consult with individuals that know about soundproofing to determine what type of drywall to use, for example? A. Q. Sure, uh-huh. In this case, though, when Mr. Schuman talked to

you early on about this issue of secondhand smoke, did you consult with him and an industrial hygienist? A. Q. No. Did you consult with an HVAC contractor

specifically about the air transference between his unit and the unit next door? A. Q. No. Did you, in any way, consult with any indoor

quality air specialist of any sort with respect to air infiltration between the units? A. Q. No. In fact, in this case, when you were consulted

by Mr. Schuman, the main purpose of him coming to you was to do construction renovation, correct?

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A. Q. right? A. Q.

Sure. He wanted to update his kitchens and bathrooms,

Uh-huh. He didn't come to you initially saying,

Mr. Gervasi, I have a smoking problem with my neighbors next door. he? A. Q. No. As a matter of fact, I think you said when you I need you to come in and seal my unit, did

went into the attic of Mr. Schuman's unit, you observed that there actually had been prior efforts by GHI, I think you said, to seal the open chase between the attic spaces, is that right? A. Right. I'm only assuming that GHI did that. I

don't know who did it. Q. But there was observations by you that effort

had been taken to seal off and close the open conduit between Mr. Schuman's unit and that of Mr. and Mrs. Popovic, correct? A. Yes, uh-huh. MR. FISHER: Your Honor, I was just supplied I

these photographs from Mr. Popovic this morning. believe you obtained a copy from Mr. Popovic. sure.

I'm not

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Did you give -MR. SZYMKOWICZ: No, I just brought this one

MR. FISHER:

These have not been premarked.

Let me show them first, from Mr. Szymkowicz, since I just received them. MR. POPOVIC: Three copies of the same. We don't have a problem with

MR. SZYMKOWICZ:

MR. FISHER: have this marked.

If I may approach, Your Honor;

THE DEPUTY CLERK: MR. SZYMKOWICZ:

Popovic's Exhibit? Mr. Popovic, do you have an

objection to me marking this as your exhibit? MR. POPOVIC: MR. FISHER: No. Just for purposes of housekeeping. Defendant Popovic's Exhibit

THE DEPUTY CLERK:

No. 1 is marked for identification. (Whereupon, Popovic Defendant's Exhibit No. 1 was marked for identification.) MR. FISHER: witness, Your Honor? THE COURT: Sure. Thank you. If I may approach the

BY MR. FISHER: Mr. Gervasi, I'm showing you what has been

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marked as Popovic Defense Exhibit No. 1.

Could you please

tell us; describe for us does this look to you like the observation that you made in the attic space between, above Mr. Schuman's unit? A. Yeah, that's similar. That's the common wall

with the one by six planks and the brick wall on the far side. Q. And I think you described earlier and for

purposes of the record, the -- turn this around the -- I guess that's the correct way. The top of that photograph, we'll call Defendant's Exhibit -- top there, No. 1, that's the brick wall section that would be between Mr. Schuman's unit and of Ms. Ipolito, correct, next to him? A. Well, that would be on the far side. Ipolito is

on the other side of Popovic. Q. But in this case, this is -- if this is

Ms. Ipolito's unit, that would be the brick side you were describing earlier? A. Yeah, that's typical. Every other wall is

either brick, and these rectangles are where the old gable vents were removed and sealed up. Q. So these pink -- pink material that is covering

up those holes, that's what you observed in Mr. Schuman's attic, correct?

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A.

Yeah.

I think Mr. Schuman's side, they might

have been plywood, but this just looks like insulation board. Q. A. It was caulked similarly? Rehab, right, have done that too; ridge vents,

because you had these open; I think the roof only done recently. Wasn't done during the rehab program. You had

to have some air flow.

You can't just seal the attic when

the roof was redone or maybe put in the ridge vents before they even reshingled the roof, but at that point, you got air flow out the roof ridge, so you can seal up these gable vents. Q. And I think you indicated that you observed,

when you initially went into Mr. Schuman's attic space, that there had been plywood sealing over those open gable vents, correct? A. Q. Yeah. And, in fact, they were caulked and sealed?

Wasn't just a piece of board up there; actually caulked, caulked and sealed around that as well? A. firewall. All of those were caulked. Should be a In fact, in

You should not have penetrations.

some cases, fire code drywall would be put up; in this case, no, this is just the original one by -Q. Because the original construction for Greenbelt

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Homes was many years before the current fire code that changed the name of the game, so to speak? A. But in the frame homes during the rehab, just as

an aside, I was on the Board of Directors during the rehab program, and we put firewalls in between the frame home attics. Prerehab, 1980, it was wide open attic as well as

wide open fire space; so, we put fire code walls. Q. You were on the Board of Directors of GHI at

some point in your past? A. '80 to '84, Vice-President of for two of those,

and treasurer. Q. When you were on the Board of Directors for GHI,

were you familiar with activities in terms of member review panel and some of the things mentioned in Mr. Szymkowicz's opening? A. Q. Oh, yeah. And those processes, were they anything you were

ever involved with as a Board member? A. Q. Oh, yeah. And did you -- did you ever deal with a

secondhand smoke issue when you were on the Board of GHI? A. Q. A. Q. No. No complaints of secondhand smoke? I don't recall any. You dealt with noise complaints, I presume?

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A.

Yeah, in the 80's, you got all kind of

complaints. Q. And on the Board, there was a process that you

all followed to deal with those complaints? A. Q. Yeah, there was a review process. The review process would be a member review

panel would hear those complaints and then try to resolve them amongst the owners? A. Q. A. Q. Yeah. You lived in GHI for some time? Eight years. As a cooperative housing community, you would

often be encouraged to work with your neighbors to resolve issues? MR. SZYMKOWICZ: whole line of questioning. THE COURT: Your Honor, I object to this Beyond the scope of Direct.

Beyond the scope.

If you are going to the issue with regard to credibility or bias, I'll allow a little bit of that, but otherwise, it's beyond the scope. MR. FISHER: question. BY MR. FISHER: Q. Mr. Gervasi, you indicated that you were aware Your Honor, I'll rephrase my

of Mr. Schuman's dissatisfaction with the fact that there

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was a neighbor smoking.

He talked to you about trying to

deal with that as part of your construction? A. Q. Right. In doing so, did you talk to him, at all, about

whether he had talked to his neighbor about working with him to take care of that problem in terms of construction that you would be doing? A. I don't think that came up in terms of the

construction or what his relationship with the neighbor. I'm sure he mentioned it to me. Q. He never had you go talk to Mr. and Mrs. Popovic

about doing something; for example, in part of your construction work, to do additional work to seal the unit from smoke, right? A. Oh, no, no, typically that wouldn't happen. It

would really be -- that would be, I don't think, appropriate for me to work in his house unless he wanted me to. Q. Well, if Mr. Schuman was willing to ask you to

work with Mr. Popovic to work on those issues, you certainly would have, correct? A. It's your paperwork?

Funny issue because I have a similar -- as an

aside, there's a unit -Q. Mr. Gervasi, if I can, instead of going on the

aside, if you can answer?

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A. Q.

No, he didn't ask me to go to Popovic. If he had, could you have done something from

Mr. Popovic's side to look at addressing -A. Q. A. Q. Yeah, sure. That wasn't done here? No. You mentioned before; I think you corrected

yourself in terms of the dates you actually began speaking with Mr. Schuman about doing work in his unit back in July of 2007, isn't that right? A. Yeah, actually I had the date wrong. It

was '07, and we started in '08. MR. FISHER: Your Honor, if I may approach to

retrieve the exhibits here. BY MR. FISHER: Q. Mr. Gervasi, I'm providing you a notebook that I'm going to turn your This is a

contained premarked exhibits.

attention to Exhibit 26 of Defendant's GHI's.

proposal that you submitted to Mr. Schuman back in July of 2007 to do work, correct? A. Q. Yes. Actually, ask you to take a look at that I believe it's two pages. This is

document specifically.

the first proposal you submitted to do work in Mr. Schuman's unit, correct?

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A. Q.

I believe so, yeah. Because there were several proposals that you

submitted to do work, and I think, actually, you had done work in several stages, is that right? A. Q. work in? That's correct. Describe for me just the stages that you did Where did you originally start doing work? Was

this the kitchen? A. Q. Yes. You described before the renovation work that

you did in the kitchen, it was a complete rehab, is that right? A. Q. Yeah. By complete rehab, you took out all the existing

appliances, is that right? A. Q. A. Oh, yeah. Appliances we are talking about were what here? Washer and dryer were moved upstairs to a That's in the

separate closet that had to be repiped. middle of the unit. Q.

Let me stop you there, washer and dryer.

The

washer dryer in these units was -- originally was located in the kitchen, is that right? A. Q. That's correct. I think if I can pull this up here, it might

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make the world a little bit easier just to put this in some context. right? A. Q. Yes. Okay. Mr. Gervasi, I'm going to direct your Mr. Schuman's unit is Unit Q, is that

attention to the screen behind you and enlarge this for us just to make this a little bit easier to look at here, if I can. Okay. Showing you a diagram, that's a diagram of

Mr. Schuman's unit, correct? A. Q. Yeah. Okay. MR. FISHER: If I may approach, Your Honor, just

to make the world a little easier here. BY MR. FISHER: Q. Mr. Gervasi, can you see the screen okay from

where you are? A. Q. Yeah. On that screen, it shows the depiction of the

kitchen areas, correct? A. Q. A. Q. Correct. And this is the kitchen that you renovated? Right. I'm going to use my mouse here to point to a Over on this wall here, this would be

specific section.

the wall that connects with Mr. and Mrs. Popovics' unit,

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correct? A. Q. A. Q. Well, the entire wall connects. From this section all the way down? Right. So on this side over here, it is -- would be

Mr. Popovics' unit? A. Q. Yes. You said before, there's no brick wall separator

between those two units on that side? A. Q. No. And, specifically, this area here is a bathroom

now, is that right? A. Q. A. Q. A. Q. Yeah, it was a bathroom then too. You did work in the bathroom? Yes. Mr. Schuman's unit? Yeah. When was that work done; done with the original

construction kitchen renovation? A. Yes, I believe -- yes, we did the dining room at

the same time. Q. Now, this is the common wall here I'm showing

you on the diagram up on the screen, and in that, there were pipes that run through a chase, basically through the hollow wall between the two units, correct?

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A. Q. A. Q.

Yeah, but the pipes are down further. Right around here? Yeah, we call it a wet wall. That's a wet wall because that's where the pipe

runs between the two units up and down as well, right? A. Q. Correct. As part of your renovation, you removed those;

you removed the commode completely in this case? A. Q. A. Q. Yeah. And you removed the sink? Right. I think you might have replaced it with a

pedestal sink as opposed to the one that was originally there? A. Q. A. Q. Yes. You tore out all the flooring, is that right? Yes. Did you actually remove the drywall that

attaches to Mr. Popovic's unit? A. Q. A. Q. I'm pretty sure we did. All the way down? Marble on the wall. You moved it all the way down to the studs;

actually redrywalled that wall, is that right? A. Yes.

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Q.

Let me ask you a question.

When you originally

started construction of Mr. Schuman's unit, this wall that we are talking about, which is the bathroom here, was that a plaster wall or was it drywall? A. That had been renovated, and I believe it was at

that time -- originally, it would have been plaster, but I believe when I got there, it was a drywall wall. Q. So you believed that the Schuman bathroom had

been renovated before you got there? A. bathroom. Q. A. Q. It had been put in. That was not originally a

It was originally closets. Converted to a bathroom before you got there? Yeah, uh-huh. The drywall that you put in, was it one-quarter

inch drywall? A. Well, we used a Durock cement board to hold up

the marble, marble wainscoting around the bathroom powder room walls. Q. You used Durock as a material that's probably,

what, no more than three quarters, half-inch thick? A. Q. Half-inch thick, yeah. So you put half-inch thick Durock on that; on

top of that, you put the tile work? A. Q. Yes, half-inch tile wall. Did you put any additional ply board on that

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before the Durock went -A. Q. No. No.

You didn't put any additional insulation in the

walls behind the Durock either, did you? A. Q. I don't think so. I don't think we insulated.

And you knew at the time you did this

construction that the other side of that wall was Mr. Popovic's unit, correct? A. Q. Right. Did Mr. Schuman tell you that he believed that

the kitchen was the worst place that smoke was coming in; he wanted you to do something specifically to deal with it in that area? A. Q. Yeah, probably. The difference between "probably" -Do you recall specifically that he told you that, because in your prior deposition testimony, I don't believe he told you that? A. He probably didn't. I don't know. You know,

the concern was that while we're working, to seal it up as best we can. That kitchen wall is the worst area. That's

where most of your penetrations are. Q. And, specifically, here, you have got

penetrations, as we just talked about, in the bathroom area, right?

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A.

Well, the bathroom area, that's where the He didn't realize at the time,

exhaust fan was located.

until we took down the drywall sealing, that the vents were connected. Q. Let me focus on the penetrations. Are we

talking about -- What penetrations in the bathroom specifically do you have? That would be the common chase

between Mr. Popovic's unit and Mr. Schuman's unit? A. I don't think there was any outlets, I don't To

think, on the common wall that we are talking about. the right of the -- that lined wall with the diagonal

lines, that must have been the Popovic powder room or his closet original, and this lower room right is/was the original pantry closet, you know, from the original home. Now, that's where the you can see the pedestal. The

arrangement of fixtures is different, but the common wall, which is where that paper is peeling off, is not penetrated by anything from either side. outlets or anything in that wall. Q. But over on this area here, this little section There's no

down in here, that's where the wet wall is where the pipe runs (indicating)? A. You see the double line wall, which indicates It's not really -- it's an

the center of the unit.

eight-inch wide wall, so soil stack, that's up there, the

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big pipe that runs up through the roof.

It collects all

the waste water from the unit and directs it down into the crawl space. Q. Let me go back a minute, Mr. Gervasi. When you

submit a proposal to an individual like Mr. Schuman, you tried to be as specific as possible in terms of work that you are going to do, correct? A. Q. Yes. Also probably would entail you reviewing it

before you submit it to make sure you are covering everything; so, that when you give a cost estimate, you are accurate in terms of not going over or under budget with what you tell somebody work is going to cost, right? A. Q. Right. You were pretty specific in your July 2007

report with the work that you were going to do for Mr. Schuman, correct? A. Q. Yeah. In fact, prior to submitting your proposal, you

had a questionnaire that you had received from Mr. Schuman with respect to those issues he wanted addressed, right? A. Q. Okay. In the July 2007 proposal, which is the

Defendant's Exhibit No. 26 -MR. FISHER: Your Honor, I guess, at this time,

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I'll ask that that be moved in evidence formally? THE COURT: Any objection to 26? No, other than I ask that the

MR. SZYMKOWICZ:

Defense provide me an electronic version of all these exhibits, which they haven't done, you know, at the conclusion of today. MR. FISHER: They can send it to me. Mr. Szymkowicz, you do have

Defendant's notebook of all the exhibits. MR. SZYMKOWICZ: provided that to us today. I understand. You just

We ask that you provide us in

electronic form because we don't use paper. MR. FISHER: I think we can provide you

something electronic; if not, you can scan it it. MR. SZYMKOWICZ: That's the problem. THE COURT: Admit No. 26. I don't want to scan it in.

(Whereupon, Defendant's Exhibit No. 26, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Q. Mr. Gervasi, the July 11th, 2007 proposal

specifically talks about that you would provide permits, inspections, approvals and complete renovation of the kitchen, dining area, powder room, living room floor, correct?

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A. Q.

Yeah. As part of this, as well, you removed all the

existing kitchen cabinets, right? A. Q. Right. You tore them off the wall completely; tore them

down; again removed the drywall down to the studs in the kitchen, is that right? A. Q. That's plaster. They were plaster walls, yeah.

Where are the cabinets, original, Mr. Schuman's

unit, looking at this diagram here? A. side. Cabinets over on this wall here on the Popovic Yeah, I believe there was one on the corner there,

which is where the refrigerator is now. Q. So this section here, let me -- so I don't block

the monitor here where the R is now shows where -- is where the the existing refrigerator was. a cabinet there, correct? of plaster? A. I think actually the stove was there, and there There used to be

In fact, it was cabinets on top

was some cabinetry around the stove. Q. Right in this area here, there was a plaster

wall around it, correct (indicating)? A. Q. Yes. And you tore down the plaster wall as part of

your renovation?

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A. Q. A. Q.

Yeah. And you replaced it with drywall instead? Right. And plaster in this case, when it was originally

there, that had been there since the very original construction of GHI, is that right? A. Q. Yes. Okay. And plaster is thicker than drywall or

was thicker than the drywall you put up in that area, isn't that right? A. Q. A. Q. Yeah. How thick is the plaster that is up? Well, plaster is -Let me rephrase my question to you. In this

case, the plaster that was on that wall between Mr. Schuman and Mr. Popovic's unit was greater than one-and-a-half inch drywall, correct? Q. A. Thicker consistency? Yes, thicker, but it doesn't have -- drywall has

paper on either side, and in some cases, there's a backup board that is drywall; then you run a coat of what is called Brown coat, which is actually cement mortar. Q. But here in terms of plaster that was there

originally, you ripped that out? A. Right.

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Q.

And then you put back up one-and-a-quarter inch

drywall in its place? A. I don't think we removed all the plaster. I On We

moved what was necessary to get the panel box out. don't think we demo'd all the plaster on that wall.

the corner, where we put in the beam in '83, we had to open up that wall. Q. You did remove some plaster and replace it with

drywall in this section? A. Q. A. Q. Yeah, that's exactly where the panel box was. Panel box is an electrical panel box, right? Yes. Electrical conduit wires, I believe a great

amount of wires running into that box? A. Q. Sure, all the wires ran there. And part of your proposal here, you talked about

relocating that panel box, correct? A. Q. A. Correct. Where did you move the panel box to? It's in the closet. There's a -- where it says It's on that left side

"Closet," kind of S picture. there. Q. Right there. Okay.

So you removed the panel

box completely, so that left a hole there, right? A. No, we left the junction box. You still have to

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join the old wires to the new ones. Q. You left the junction box where it was, and then

you ran the new wires to a different area across the room? A. Q. Yes. Mr. Gervasi, I think you testified too that you

are not an electrician, correct? A. Q. Correct. You actually didn't do this work yourself. A

subcontractor -A. work. Q. As a general contractor, are you in the unit the Yeah, I had a licensed electrician does that

entire time the work is being done? A. Not the entire time. I'm there every day. I do

actual work. Q. In this case, you didn't run the wire for the

junction box? A. Q. No, the electrician did. Did you remove the old junction box wiring to

reconfigure it or the electrician did that work? A. Q. The electrician did the work, yes. You have had subcontractors that worked on

putting in the drywall after he did his work, right? A. non -No, we do. I have a crew that does all the

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Q. A. Q.

Your crew? Yes. You weren't the one that actually hung the

drywall there? A. helped. Q. that wall? A. There is no insulation in the wall. In fact, Might have been. I don't think so. I probably

I worked with the guys. You didn't put additional insulation back into

you don't want to put it there because if it gets wet, it turns into a mess. Q. A. Q. A. Other types of materials? Yeah, you can use foam. You didn't put foam in there? I don't think we used foam. We --

chinked openings can be changed with a mixture of plaster and insulation. That makes a nice solid gap filler or we

use brown coat, which is the same plaster backing material as the original user. Q. A. Q. No spray foam was used here? I don't think we used spray foam. Talk about relocating the panel box in the You did

closet, creating junction old panel box -- yadda.

some work in the cabinets adding fluorescent lighting. As a matter of fact, your proposal is pretty

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detailed about every step of the work you were going to do in the kitchen. correct? A. Q. Yeah. Mr. Gervasi, am I correct or I think the That was by -- designed to be specific,

document, if you look at it -- I don't see anywhere specifically in this proposal that you submitted that you indicated that you were going to do additional work to seal his unit from smoke from his neighbors' unit. not in here, is it? A. Q. A. Q. Not specifically, no. Not in here at all, is it? Not mentioned? That's

Not mentioned in the proposal. Okay. In terms of the other renovation work you

did for Mr. Schuman, in those proposals, you also didn't address specifically the issue of -- specifically, the issue of sealing his unit from secondhand smoke from infiltrating? A. Q. No, I wasn't hired to do that. You weren't hired to do that. You were hired to

do renovation as you do throughout GHI, right? A. Yeah, as part of the work, if I'm working on the

floor, to keep mice from crawling up from an open hole, I plug the hole. You try to do a thorough job. You try to solve. You don't

want any problems.

That's part of what

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we do. Q. Mr. Gervasi, I direct your attention to

Defendant's Exhibit No. 27. MR. FISHER: And, Your Honor, you do have in

front of you a notebook that has these same exhibits, if you are so inclined. BY MR. FISHER: Q. You remember this document, this list of

questionnaires you received from Mr. Schuman? A. Q. Yes. This is a pretty extensive list of questions

that he provided to you with respect to your original proposal to him, was that right? A. Q. Right. He asked about a number of issues with respect

to the work that he was going to have you do in his unit, correct? A. Q. Yeah. Okay. Again, do you remember receiving this

list of questions from Mr. Schuman? A. Yes. MR. FISHER: Okay. Your Honor, I would move

Exhibit No. 27 into evidence. MR. SZYMKOWICZ: THE COURT: No objection, Your Honor.

It will be admitted.

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(Whereupon, Defendant's Exhibit No. 27, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Mr. Gervasi, in this list of questions, there's

also no reference from Mr. Schuman specifically to the issue of sealing the unit, is there, from the infiltration of secondhand smoke from his neighbor? A. Q. Yeah, there's nothing specifically in this. But there are all very specific questions about

the subcontractors that you were going to use to do the work, correct? A. Wait a minute. Number 18 on page four, "A

particularly bad problem I have had, off and on, over the years, is cigarette smoke from the neighbors filtering into the bathroom. I'm not sure how it enters, but Do you have any

suspect it's through the plumbing.

recommendations on how to minimize this?" Q. A. Q. A. So there is that reference in there? Yeah. But your proposal didn't address that, did it? No. It didn't address what brand of caulk I was There's a lot of

going to use some specific place either.

things that happen that aren't exactly specified. Q. And what number did you say that you saw that

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question about -A. On page four of this same document. MR. FISHER: Let me approach. I want to make

sure you are looking at the same document I am. A. Q. A. Q. Back. Right at the very end there? Right. And it says specifically, "A particularly bad

problem I have had, off and on, over the years, is cigarette smoke from the neighbors filtering into the bathroom." Okay. Which bathroom did you understand he was

talking about there? A. Well, at this point, we were doing the

downstairs bathroom, half bath on the paper there. Q. Okay. "I am not sure how it enters," but he

suspects it's through the plumbing. Did you do any investigation when you opened up the wall to look at the plumbing in that lower bathroom? A. Yeah, I'm sure we sealed wherever it penetrated.

The pipes in that hall bathroom all came up through the floor. Q. There's no specific reference to anything about

the upstairs bathroom, is there? A. No, this contract was separate -- two years

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later we did the bathroom upstairs. Q. In the original proposal. In your subsequent

proposal, though, you didn't add anything additional in terms of cost expense for you to do any additional sealing, did you? A. No, but I mean, as part of the job, you know, if

I say, spackle smooth, it's not going to be any gaps in it or, you know, it's assumed it's going to be sealed fully. Q. caulking? A. it. Q. And with respect to the work that you did for And in this case, is it your crew that does the You do that all yourself? Generally, I have one -- I or one of my guys do

Mr. Schuman related to his original permit with GHI, you didn't include any specific specifications with respect to additional insulation in it, did you? A. Q. No, we weren't insulating. You weren't asked to insulate. You weren't

asked to do any sound barrier walls either, right? A. Q. Correct. When you do a sound barrier wall construction to

diminish sound between units, you do additional insulation as well, right? A. Q. Oh, yeah. Whereas that acts as a buffer between the air

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flow of sound between units, right? A. Q. Right, uh-huh. In how many situations in GHI would you say that

you have worked on where you say neighbors complained about sound, and they wanted you to address that? MR. SZYMKOWICZ: irrelevant. Your Honor, I object. It's

We are not here for this.

I have been kind

of lenient on my objections, but this is getting to be extreme. THE COURT: MR. FISHER: Sustained. If I may be heard, Your Honor?

One of the issues raised in this case is with respect to what Mr. Schuman did or didn't do with his unit and whether or not the renovations done by Mr. Gervasi did or did not address air flow issues or whether it disturbed it. My questions go to that issue, Your Honor. If you

give me a little latitude, I think you'll see Mr. Gervasi's testimony will indicate there was no additional work done by him to address the sealing of the unit. THE COURT: to. I think that's what he has testified

Whether or not he has done sound insulation on other

units has no bearing. MR. FISHER: He has admitted that he didn't

address sound insulation. I'll rephrase the question, Your Honor.

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BY MR. FISHER: Mr. Gervasi, in the condominium units that you

worked in in GHI, would you agree with me that when you opened up and did your -- when you originally went into observe Mr. Schuman's unit, you did find; I think you testified to this, additional caulking areas that you didn't see in other types of units in GHI. I think you

said the baseboards had been caulked, which you don't typically see? A. That would have been it. And I hadn't been up

in the attic at that point.

When I first got in, I don't

think I observed any real efforts to seal. Q. When you went into the units to do a little bit

more investigation, like in the attic area, you did see there had had been some action taken to seal between the attic space as you testified? A. Yeah. I have no idea at what point it was done,

but, yeah, it's more elaborate than typical. MR. FISHER: THE COURT: Court's indulgence, Your Honor? Yes.

BY MR. FISHER: Mr. Gervasi, was Mr. Schuman living in the unit

at the time you did the work? A. Q. Yeah. So he was in and out of the unit during the

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whole time of the construction? A. Q. Yeah. As part of your construction, you did some

sanding work as well that created dust in the unit, correct? A. Q. Yeah. As a matter of fact, Mr. Schuman contacted you

at one point and complained about the amount of dust he had in his unit, isn't that right? A. Yeah, might have been a little too much. We

cleaned it up and took extra pains, yeah, probably, I guess. Q. I don't even remember but. Let me see if I can refresh your recollection. Recall receiving an e-mail from Mr. Schuman saying he appreciated the work, but he was dissatisfied with the fact that there was lots of dust around? A. Q. Right. I think you responded to him indicating that you

apologized; that your contractors hadn't covered up as well as they probably should have or cleaned up, is that right? A. Q. I can accept that. That happens sometimes on a job, that

contractors may not follow every single step in terms of covering up to prevent dust from getting on different

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things? A. Q. Yeah. It's also typical, as part of construction, that

there will be debris that your contractors or your workers have to clean up after the job? A. Debris is created first thing you do. You know,

you got to deal with it all the time. Q. Especially the case when you are doing

demolition work and removing old plaster and firewall, correct? MR. SZYMKOWICZ: I object. This is irrelevant

Mess left by the contractor is not an issue here. THE COURT: I'll allow it. It's okay.

BY MR. FISHER: Q. Mr. Gervasi, you have been in units before that

have had while -- you were in Mr. Schuman's unit when the demolition work was done? A. Q. Sure. Do you wear masks when you do that work in

removing; taking apart plaster and drywall? A. Q. Yeah. Yes. Yes, uh-huh.

Mr. Gervasi, I'm going to direct your attention,

as well, to Defendant's Exhibit No. 61, if I may. This is the proposal you submitted to do work in Mr. Schuman's unit dated September 19th, 2009, correct?

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A. Q.

Yeah. Okay. So this is the work that you were

submitting a proposal to do later to remodel the bathroom and other parts of his unit after the original work he had done in the kitchen and upstairs, or the downstairs area before, correct? A. Q. Correct. And as part of this work, you relocated his

dryer, is that right, or actually, in this part of the work, I guess you were asked to go back and level the dryer that you previously moved, correct? A. Yeah. MR. FISHER: Your Honor, I would ask that the

Defendant's Exhibit 61 be admitted? MR. SZYMKOWICZ: THE COURT: No objection, Your Honor.

Be admitted.

(Whereupon, Defendant's Exhibit No. 61, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Q. In this case, you talked about the work that you You talked about, for

would be doing on the second round.

example, that you would replace, on page two there, the upstairs base molding and shoe molding that is in the bedroom area, correct?

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A. Q. urethane? A. Q. A.

Throughout the whole house. And you say you had two top coats of spar

Right. Is that a stain? It's a clear -- this is urethane clear finish

that is put on wood. Q. Urethane has that kind of odor to it when you Kind of smells a little bit after it's

apply it, right? done? A. in it. Q. A. Q.

Depends.

Water base doesn't have a lot of smell

In this case, use oil or water base? I believe we used water base. Did Mr. Schuman -- he was still living in the

unit when you did these renovations in 2009, correct? A. Q. Yeah. He didn't vacate the home while you were doing

renovation during -- in the bedroom? A. the work. I believe he was off to work when we were doing We typically work 7:30 to 4:00. Homeowners are

typically off to work. Q. "Typically." You would finish your work; go

home that evening, and Mr. Schuman be there, and then you would go back in the next day to start your work again?

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May not be exact, but pretty close, is that right? A. Q. Yes. Okay. Mr. Gervasi, you have, I think you

indicated, some workers that work for you, and you have a couple of them, on occasion, will smoke when they are at the job? A. I have one smoker, and he smokes far away. I

don't like cigarette smoke. Q. So when you are working in the unit, you

understand that you might have contractors that work for you that they may smoke? A. Q. No, nobody smokes in the unit. They don't smoke in the unit. As a matter of

fact, you tell them don't smoke specifically in the unit. Go outside. A. Q. Right?

Yeah. You recall being in Mr. Schuman's unit when the

work was being done by the contractors or workers, when they were outside smoking at Mr. Schuman's patio garden area? A. Q. A. Do I recall them smoking when we were working? Yes, outside the unit? Typically, they will have a coffee break. We'll

sit on the porch or something outside, and the smoker or two, they will go on the other side of the yard because I

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don't want them blowing smoke in my face. Q. But they will be in the yard smoking, correct?

In this case, that's what happened, isn't it? A. Yeah. They have got a technique where they will

go in the truck to get tools or something, light a cigarette real fast, and I refer to it as three weeks paid vacation taken in three minute intervals. Q. Got you. Mr. Gervasi, I'm going to also refer

you to what has been previously marked -- let's see here. If I may approach for a moment here? Mr. Gervasi, let me go back for a moment. We

were talking about before when you relocated the washer and dryer to a new location or to a new area in the unit, correct? A. Q. Uh-huh. Specifically, they were -- referring back to the

diagram, the washer and dryer were ultimately moved up to the second floor area, which is this lower -- if you look at the screen there, this lower here, correct? A. Q. Yeah. Okay. Originally, they were located where in

the kitchen area? A. Right where you were pointing -- well, no,

actually the front wall between the sink and the Popovic wall. I believe there were two separate floor models.

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Q.

So you had a washer and dryer there.

Now, the

dryer had a dryer vent that exhausted as well, correct? A. Q. Correct. So that'd be another through-wall penetration

that would have to be closed off after you removed the dryer from that area? A. Yeah, uh-huh. We sealed that up. We sealed the

brick on the outside. Q. outside? A. We replaced brick. Took the dryer vent out; You are saying you sealed the brick on the

replaced the brick. Q. A. Q. Outside the unit? Yeah, went out to the yard. That dryer vent run, that the vent, itself, runs

through the wall that exists between Mr. Popovic's unit and Mr. Schuman's unit? A. No, I believe it just backed out right into the It wasn't on the Popovic wall.

outside wall. Q. A. Q.

It went directly outside? Correct. In fact, it wasn't in a common space with

Mr. Popovic? A. I don't think so. If it was, it was removed,

but I believe it went out the wall directly out the

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outside. Q. outside. A. Q. A. there. Q. When you removed that, you said it went out the You sealed the brick from the outside? Correct. On the inside, describe for us what you do? That's a plaster patch. You plaster a patch

You use Fiberglas insulation. In that location, unlike the other locations

talked about earlier, you actually put new insulation back in the wall, correct? A. Q. upstairs? A. Q. speak? A. Q. Correct. Now talking about the new area when you moved it New dryer, it was a new unit. Well, you relocated the washer dryer room, so to Correct. Then you sealed it up and moved the dryer to the

upstairs, again here. Let me see if I can zoom in on this area. You

relocated the washer dryer to this upstairs section here where the cursor is up on the screen, right? A. Q. Yes. Presumably, you had to have a new dryer vent run

to meet code, run to the outside, right?

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A. Q. side here? A. Q. outside? A. Q.

Yes. Basically, I presume you ran it out the porch

Exactly. You had the dryer vent run that went to the

Yeah. And in that area, you cut through the brick to

create that penetration to allow the new dryer vent escape? A. Q. Right. Mr. Gervasi, I'm going to direct your attention Excuse me.

to Defendant's Exhibit No. 39.

Mr. Gervasi, that's the invoice you submitted to Mr. Schuman as of August the 18th -- August 12th, 2008, correct? A. Q. Yeah. That described the amounts paid and due from

Mr. Schuman for the work that you had completed to date, is that right? A. Right. MR. FISHER: Your Honor, move Defendant's

Exhibit No. 39 into evidence? MR. SZYMKOWICZ: THE COURT: No objection.

It will be admitted.

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(Whereupon, Defendant's Exhibit No. 39, previously marked for identification, was admitted into evidence.) MR. FISHER: Court's indulgence, Your Honor. I

May be done here in just a moment. Mr. Gervasi, when you completed work for Mr. Schuman, you were asked to go back in to do some additional fixes, cleanup work, once the job was done, such as replacing some switch blades, correct? A. Q. Yes. It's typical for jobs like this; you are going

to find things that you need to go back; clean up a little bit, right? A. Q. correct? A. Q. Yeah. And, in fact, that type of work for you to go in Yes. That was done here in Mr. Schuman's unit,

and out of the unit several times actually continued up through 2010. A. Q. Does that sound right to you?

Yeah. So you were still doing some work in this unit

in early 2010, is that correct? A. Q. Yes. When do you think you completely stopped doing

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work completely in Mr. Schuman's unit? A. A call back. The washer dryer gave a lot of

problems to us.

I believe it had to be replaced, and so The lights in the kitchen didn't Little things

we came back for that.

function properly, so we replaced them. that show up over time. completed or finished. Q.

I don't know exactly when we

Mr. Gervasi, did Mr. Schuman discuss with you

the filing of this lawsuit during the time in which you were initially doing the work? A. Q. Sure -- yes, probably. But he didn't ask you to come back in to do

additional work to address any of the problems he was describing to you with respect to smoking after you completed the work in January 2010? A. No. MR. FISHER: THE COURT: questions? MR. POPOVIC: detail. CROSS-EXAMINATION BY MR. POPOVIC: Q. Mr. Gervasi, said that one of the weak points Just one question to clear one No further questions, Your Honor. Mr. Popovic, do you have any

from the point of infiltration and is location is position

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of electric boxes back to back in the common wall. Do you know where is electric box in Popovics' house positioned? A. No, I don't know. It may be a junction box now.

I haven't been in your house. Q. Since I moved in, it was in the closet, the same

closet as you moved in Mr. Schuman's house. A. Q. Right. So I don't know where it was originally, but

it's not in the same common walls for last -A. There's a junction box there. The original

house, all of them were back to back in that utility wall. Q. suppose? A. Right, when rehab came through in '80 or '81, So in our unit, it was moved a long time ago, I

they put in a bigger box, but that remained a junction box; so, those junction boxes are opened to each other as well. Q. else? A. That junction box is still there. You can't But from our unit, it's just the wall, nothing

move the junction box.

That's where the wires terminate; That's not

so, if it's just a wall, somebody buried it. too good. MR. POPOVIC: Okay. Thank you.

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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.

THE COURT:

Redirect. REDIRECT EXAMINATION

BY MR. SZYMKOWICZ: What was the total amount you received from

Mr. Schuman for your services that you performed, if you know? A. Q. A. Q. I don't know. I have --

Can you give us a ball park figure? Sixty thousand bucks maybe. Is it possible, in your opinion, after being in

the Schuman house, to have completely sealed -MR. FISHER: Objection, Your Honor. Leading the

witness; also calling for speculation on any testimony he's not qualified to give in this case. THE COURT: I haven't heard the question yet.

BY MR. SZYMKOWICZ: Is it possible for you to have completely sealed

the outlets in the Schuman house to prevent secondhand smoke from migrating from the Popovic unit into the Schuman house? A. Electrical outlets -MR. FISHER: the question. Again, Your Honor, I'd object to

He's asking about opinion testimony with

respect to sealing; with respect to secondhand smoke infiltration. He already testified he's not an expert in

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air quality or HV systems. THE COURT: THE WITNESS: Can you seal the junction box? You could seal it around it, yeah. You could make a more

You can caulk the whole back of it.

air tight junction box than what is there, sure. BY MR. SZYMKOWICZ: Q. Is that what you did in this case? MR. FISHER: Again, Your Honor, I would object

with respect to his opinion on what it does -- on what it does with respect to smoke infiltration. He can testify

to what he does to seal it with respect to caulking, but beyond that. THE COURT: smoke. He's not talking about secondhand

He's just asking if he did any additional sealing

around the junction boxes. MR. FISHER: air infiltration. THE COURT: I understand. I believe his question is to the

BY MR. SZYMKOWICZ: Q. A. Q. A. Q. A. What was your answer? I believe we did. So you did seal behind those? I believe we did, yeah. Did you seal around the plumbing? Yeah, absolutely.

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Q. A. Q.

What about the attic? I didn't do anything in the attic. From what you have seen in the attic, can you

tell me how the floors connect to the other house of the attic? A. Well, it's a continuous one by six flooring. It's just boards laid next to

It's not tongue and groove.

each other, and they run continuously underneath that partition. I don't know if that's been sealed. I

certainly didn't do it, but I don't believe it was. Q. A. Did you notice any sealant? Not on the floorboards. In fact, we did work in

the attic some. fan.

We had to vent the new bathroom exhaust

We removed the bathroom ceiling heater and put in a We were up in the attic, and there is --

wall heater too.

there is not -- the wall, itself, has caulk on it, but when you get into the floor level, the blown insulation surrounds that, but I don't believe each one of those boards that run continuous -If you look at the house from front to back, there's a roof like this, and you have the ceiling joists run this way; so, it makes a triangle, and you have your one by four boards running perpendicular to the joists. Between each one of these, is a gap; so, I don't think that was sealed. I can't swear to it, but I don't believe

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it was.

I didn't believe I saw any of that sealed.

I did

see the wall, the one -- say one bys were used on the partition, and those gaps were caulked with silicone caulk at some point; so, that wall was caulked fairly thoroughly. It looked to me, on not an extensive

examination, but I don't believe the floorboards were caulked. MR. SZYMKOWICZ: THE COURT: Sure. May I approach, Your Honor?

BY MR. SZYMKOWICZ: Q. I'm showing you the Court's Order on the

preliminary injunction from September of last year? MR. FISHER: Objection, Your Honor. I don't

see how the Court's Order is relevant to testimony of this witness. THE COURT: Not yet heard the question.

BY MR. SZYMKOWICZ: Q. There's a note in the order that states, "A few

notes shall be made of certain of the arguments made by the Defendants; among them are the suggestion by GHI that, perhaps, the renovations done by Mr. Schuman to his unit caused or contributed to the smoke seepage." And then it

concludes by, "The Court finds this suggestion is ludicrous, if not outright offensive under the circumstances."

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The question that I have for you:

Do you

believe that the renovations that you performed on the Schuman unit caused or contributed to the smoke seepage? MR. FISHER: Objection, Your Honor, calls for

speculation; asking for opinion testimony with something he's not qualified to offer an opinion on. Also move to

strike the record with respect to Mr. Szymkowicz's representations and interpretation of a Court order. THE COURT: interpretation. I don't know if it's his

He just read the Court Order.

But do you believe you have done anything to create any holes or gaps or anything in the common wall? THE WITNESS: No, just the opposite. I have no further questions.

MR. SZYMKOWICZ: THE COURT: MR. FISHER:

Mr. Fisher. Just briefly, Your Honor.

RECROSS-EXAMINATION BY MR. FISHER: Mr. Gervasi, you testified a moment ago that we You had contractors doing work,

did this and we did that. correct? A. Q. A. Q. Yeah.

And your employees? Right. So when you were saying, we did sealing of this

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area, you didn't stand there with a caulk gun and do all the caulking in the unit, correct? A. No, I'm sure I didn't do all of it. I may have

did some of it; probably did. Q. Were you working on other jobs as a contractor

while you were doing Mr. Schuman's job in his unit? A. Q. on? A. Q. Right. So, again, presumably you were not there the That right? Yeah. So this wasn't the only project you were working

entire time your workers were there. A. Right.

REDIRECT EXAMINATION BY MR. SZYMKOWICZ: Q. You supervised completion of the Schuman job,

didn't you? A. Q. A. Yes. You were ultimately responsible personally? Sure. MR. SZYMKOWICZ: THE COURT: I have no further questions.

Anything else?

Was their any thought or discussion about putting up a plastic Mylar Tyvek barrier on the studs before the Sheetrock went up?

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THE WITNESS: THE COURT:

No. Anything based on my question?

REDIRECT EXAMINATION BY MR. SZYMKOWICZ: How much would such a plastic or Mylar sheet

between the units cost? A. You would have to remove all the wall board, and

it would have to be sealed around each joist and each top plate; as many nails sticking around through all that, that would have to be addressed. I don't know. Maybe a

couple of few thousand bucks -- I don't know -- easily. Depends on how much you are going to do. wall, you have to figure it out square foot. Each

You would

have to do it in the crawl space too, I guess. THE COURT: MR. FISHER: THE COURT: THE COURT: (Recess.) (Witness sworn). THE DEPUTY CLERK: Thank you. You may be Mr. Fisher. No questions. Thank you, sir. You may step down.

Take our midmorning break.

State your first and last name; spell them for the record. THE WITNESS: Carolyn Hammett, C-A-R-O-L-Y-N,

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H-A-M-M-E-T-T. CAROLYN HAMMETT, 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. Q. A. Q. Do you live in Greenbelt? Yes, I do. Where do you currently live? 6R Ridge Road. Did there come a time where you lived on the

Schuman road previously? A. Q. live? A. Q. between? A. Q. And some garages, yes. And did you live in the similar type of houses Across the Court. So there was a parking lot or driveway in 11 Court, yes. Where in relation to Mr. Schuman's unit did you

as Mr. Schuman's? A. Q. A. Q. Similar, much smaller. Did the Popovic family ever live on your side? Yes, three doors down. Did they subsequently move to the Schuman's

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side? A. Q. side? A. They might have lived there about a year. I'm Yes. How long did you live near the Popovics on your

not a hundred percent sure how long they were there. Q. A. Q. A. Q. A. Q. A. Q. When was that? '95, '96'ish. And when did they move to the Schuman side? I think it was '96. When did you move to your new house? '98. Not that new anymore? No. Did you ever have a problem with the Popovics on

smoking when they lived on your side? MR. SZYMKOWICZ: relevance. THE COURT: I'll allow it. Objection, Your Honor,

BY MR. SZYMKOWICZ: Q. Can you tell me what kind of problem you had

with the Popovics? A. On the garden side, when they would be out

smoking, I would have to close the bedroom window upstairs, living room window, front door.

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Q. A.

Why is that? Because the smoke would come in. We would be home schooling. I had two It was

small children.

uncomfortable to smell that in my home. Q. How many units were between your house and the

Popovics' house? A. Q. units? A. Q. Forty or fifty. I'm not a hundred percent sure. There were two units between us. Do you know about how many feet was between your

Do you know if the smoke from the Popovic house

was coming through the inside of your house or was it coming from the outside? MR. GOECKE: leading the witness. THE COURT: If you know? Objection, Your Honor. He's

You said it came through the window when they were on the garden side? THE WITNESS: attic. BY MR. SZYMKOWICZ: Q. A. How do you know? Because I could smell it up there when I would Yes. It also came through the

go to get stuff. Q. Did you experience this secondhand smoke smell

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in your house? A. bedroom. Q. And when you were home schooling your kids, Mostly in the attic, sometimes in the upstairs

where was -- where did you perceive the smoke to be prevalent inside of your house; what area of your house? A. We only had one room downstairs. It's the

living room, dining room, and we would home school anywhere in that area, and that's where I smelled it and up in the upstairs bedroom. Q. was? MR. GOECKE: Your Honor, still objecting to it. And can you tell the Court what kind of smell it

It's not relevant; fairly prejudicial to my client; happened 15 years ago, different circumstances, different units, different smoking parties, different people; not about what this case is all about. If she wants to testify about smoke she smells in Mr. Schuman's unit, I think what happened 15 years ago is fairly irrelevant and just prejudicial. THE COURT: Just draw it just to give a picture

of smoke traveling in the units, and in this instance, given that it's three units away, I think additionally relevant to -- in terms of distance. Go ahead.

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BY MR. SZYMKOWICZ: Can you tell me what the smell smelled like? It just smelled like really bad cigarette smoke,

very strong cigarettes. Q. A. yeah. Q. Do you know if they were smoking outside, and it The cigarettes that the Popovics used? That I was smelling in my house from their yard,

was coming in or if they were smoking inside, and it was coming through the walls? A. As far as I could tell, most of the time it

was -- when they were sitting outside on their patio smoking it was coming in my windows. Now, the cigarette

smoke I was smelling from inside, the attic, could have been coming from inside. from inside the house. Q. Did that cause you or your children any kind of I would imagine it was coming

health effects? A. My son had asthma, so I certainly didn't want He was in and out of

him breathing that in with asthma.

the hospital with that sort of thing. MR. GOECKE: Objection. He asked whether they

caused any medical effects; not whether they suffered from any -THE COURT: I'll accept the answer that her son

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had asthma; she didn't want it to affect. BY MR. SZYMKOWICZ: Q. That's a very important distinction. Did you or

anyone in your family actually suffer any health effects from the Popovics' smoking to your knowledge? A. That would be impossible for me to know exactly

what was affecting my son's asthma. Q. Did you ever have any physical reaction to the

Popovics' smoking when they were on your side? A. A long time ago. Mostly it was just the odor I don't

that I know of.

My son had reactions frequently.

know if it had anything to do with that smoke or not. Q. We are going to move to the Schuman Popovic

problem; so, Popovic has already moved across the street. He's next to Schuman. Have you ever been to Mr. Schuman's unit and smelled smoke? A. Q. Often. Can you tell me about your family's relationship

with Mr. Schuman over the past 15 years since you moved away and Mr. Popovic moved next door to the Schuman's? A. My husband and Mr. Schuman were running

partners; ran the Marine Corps Marathon; got together quite often. My children call him Mr. Dave. Hard for me

to think of him as Mr. Schuman.

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We often -- he would come to our home and have dinner, and we would go to his home and have dinner and watch certain sporting events at each others homes. Q. A. Q. That's continued until this day? Yes. Can you describe this smell of smoke that you

personally witnessed in the Schuman house? A. If you are -- his dining room table is right by

the window on the garden side, and he would invite us for dinner, and the windows would be open. Be a beautiful

evening, and suddenly, you get wafts of cigarette smoke, and it's a very uncomfortable situation to be trying to eat dinner, pleasant dinner, and all the windows would have to be closed. Q. So what would be the sequence of events? Would

the windows be open at the start of the dinner? A. Q. A. Yes. What would happen? Well, you couldn't sit there and eat dinner. We would have to close the It

was just uncomfortable. windows.

Mr. Schuman would have to close the windows. If it were -- excuse me. If it were loud music,

GHI would have come in and taken care of that issue right away. MR. FISHER: Objection, Your Honor.

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THE COURT:

Sustained.

Listen carefully to the question he asks; you confine your answer to that. BY MR. SZYMKOWICZ: When the smell of smoke hit you when you are

sitting in the Schuman dining room, did it cause you any kind of discomfort physically? A. I get very severe headaches when I'm around It becomes a migraine, and my stomach

cigarette smoke. gets upset.

You don't want to have dinner with them. Did that happen to you? I have had headaches at Mr. Schuman's home, yes. What was the cause of the headaches? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. If you know? I didn't hear what he said?

BY MR. SZYMKOWICZ: What was the cause of your headaches? I would have said it was the cigarette smoke I

was smelling. MR. FISHER: Your Honor, I would object to the She may testify what she

actual cause of her headaches.

thinks it might have been; to actually be able to testify in terms of what caused it, I think goes a little bit too

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far afield, Your Honor. THE COURT: that may be drawn. I think it's a reasonable inference

I'll allow it for that purpose. So on the times you got

MR. SZYMKOWICZ:

headaches after leaving the Schuman house, did you have headaches before? A. No, I would get the headache at -- and it wasn't It was on occasions

every single time I went to his home.

when you could actually really smell the cigarette smoke. I'm very sensitive to cigarette smoke. Q. A. Q. Have your kids been to Schuman's house? Yes. Did they ever have any problem because of the

secondhand smoke to your knowledge? MR. GOECKE: THE COURT: Objection, Your Honor. Sustained.

BY MR. SZYMKOWICZ: Q. The headaches that you suffered at the Schuman

house and the times that you have smelled the smoke, when did these take place in terms of time? A. Q. years? A. Q. Over the years. And is it something that still continues to this Like what year? Yeah, is it something that happened over the

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day? A. We actually haven't been over there in several

months for dinner; so, I haven't had it; I mean, I haven't had that experience, you know, in recent months. Q. Schuman's? A. Q. When was the last time you had dinner at the Do you know? Honest, can't tell you. Maybe a year ago.

A year ago was cigarette smoke a problem at the

Schuman house? A. The windows were closed; I mean, you could still

smell smoke, but it was not like, you know, when he would invite us and the windows had been opened. MR. SZYMKOWICZ: THE COURT: MR. GOECKE: I have no further questions.

Cross. Yes, Your Honor.

CROSS-EXAMINATION BY MR. GOECKE: Q. You testified that you smelled cigarette smoke

at Mr. Schuman's unit often, is that correct? A. You can walk in and smell it. When you walk

into his home, you can smell it. Q. it? My question to you is: How often did you smell

How many times have you been in Mr. Schuman's unit

and smelled it? A. When you walk into his home, you can smell

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residual sort of smoke odor. Q. A. Q. A. a month. Q. to when? A. Maybe over a year ago or more often when they When you say, "in the past," you are referring Every time? Pretty much every time. How often do you go to Mr. Schuman's unit? In the past, it might have been as much as once

were training for the marathon. Q. there. A. Q. Let's go back to when Mr. Schuman first moved He moved there around 1996? (Witness nods head up and down). At that time frame, what was your relationship

with Mr. Schuman? A. Q. A. Q. We did not know him very well in 1996. What year did you become good friends with him? A few years after that, 1998, '99. At that point when you had become good friends,

you would go to his house about once a month? A. Q. Potentially, yeah. That was -- was that constant throughout your

relationship with Mr. Schuman until recently? A. Q. Yes. About once a month?

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A. Q.

(Witness nods head up and down). Do you recall testifying about the secondhand

smoke you smelled in Mr. Schuman's unit at your deposition? A. Q. Yes. And when I asked you then how many times you had

smelled secondhand smoke in Mr. Schuman's unit, do you remember how many times you had testified about? A. Q. I don't. You said only three times in the past year, is

that right? A. If -- it's hard to say how many times been to I mean, we have been there more often My son takes care of his dog on To be able to

his home in a year.

because he now has a dog. occasion.

I smell it when I go over there.

tell you exactly how many times I have been in his home or to be able to tell you exactly how many times I have smelled smoke in his home, I mean, after you have been in there a little while, you get used to the odor. If I told

you that I had smelled it three times, I'm sure I smelled it three times. Absolutely I smelled smoke in his home

three times plus. Q. You go to Mr. Schuman's house about once a

month, right, sometimes more, sometimes less? A. Yes.

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Q.

So it's Mr. Dave, right, as your children call

A. Q. A. Q. A. Q. A. months. Q.

Yes. He's a good friend? Yes. You go there a lot? Goes in spurts. You have meals at his home? We have not had a meal at his home in several

And you realize when you testified at your

deposition, you were testifying under oath, is that right? A. Q. perjury? A. Q. A. Q. A. Q. Absolutely. Just like you are here today? Yes. And you have to tell the truth? Yes. Ms. Hammett, I would like to show you a copy of Yes. You realize that is subject to the penalties of

your deposition transcript, page thirty-two; like to direct your attention to lines three on page thirty-two. And it says: "How many times within the last

year have you been in Mr. Schuman's unit where you have

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experienced the smoke from the Popovics?" Your answer is: three." Did I read that correctly? A. Q. Yes. So not every time? You didn't smell it every "Off the top of my head, maybe

time, did you? A. Q. There is a residual odor. Ms. Hammett, did you smell it every time you

were there or not because in your deposition, that's not what you said? A. Q. A. In my deposition, I said maybe three. Right? That doesn't rule out that I didn't smell it

every time. Q. When did Mr. Schuman first complain to you about

secondhand smoke from the Popovics? A. Q. I don't think I could put a date on that. You testified that it happened over the years,

isn't that right? A. Over the years, he has complained about the

cigarette smoke, yes. Q. He complained about it shortly after he moved

into his unit, didn't he? A. I'm sure he did.

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Q.

He complained about it consistently over the

years from time to time, didn't he? A. Q. I'm sure he did. You also testified that the smoke is worse when

the window was open, isn't that right? A. Q. Yes. Nights when you have been over there to have

dinner, there has been nights you smelled smoke with the window open, right? A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Yes. You closed the window? Yes. You stayed in his unit? Yes. You enjoyed your meal? Yes. You didn't leave to go to your unit? No. You didn't leave to go to a restaurant? No. You don't know whether the Popovics smoke more

or less now than when he lived near you? A. Q. I do not know that. So you have no way of knowing if they smoke the

same cigarettes today that they did 15 years ago, would

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you? A. Q. I would not know that. Did you ever talk to your neighbors about the

smell of smoke when the Popovics lived in your Court? A. Q. Possibly. There were two units between you and the

Popovics, is that correct? A. Q. Yes. You don't remember talking to them about the

smell of secondhand smoke? A. Q. I don't remember. They never complained to you about smelling any

smoke in their attic? A. Q. I don't remember. There were other smokers that lived around your

unit around that time too, weren't there? A. There might have -- I seem to recall a man

across the Court from us that smoked. Q. Q. Uh-huh. So you don't know whether, for certain, whether

the smoke you smelled came from the Popovics or from this other man? A. Q. yes? Pretty certain it came from the Popovics. But you don't know for sure? Is that a no or a

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A.

They are outside on their patio smoking, and I'm I'm sure it came from

smelling smoke come in my house. the Popovics. Q.

Are you aware that Greenbelt took steps to

mitigate the effects of secondhand smoke in Mr. Schuman's unit back in 1997? A. I believe they did some caulking around the

corners of the unit. Q. And you are also aware that he renovated his

unit extensively in 2009, isn't that correct? A. Q. Yes. In between those twelve year periods from 1997

to 2009, Mr. Schuman still complained to you, on occasion, about the smell of secondhand smoke, didn't he? A. Q. Yes. In terms of your personal experience, you agree

that you are highly sensitive to secondhand smoke? A. Q. A. Q. Yes. More so than your husband, for example? Probably so. You would be more annoyed than the average

person about the exposure to secondhand smoke? A. Yes. MR. GOECKE: MR. POPOVIC: Thank you. Thank you, Your Honor.

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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.

CROSS-EXAMINATION BY MR. POPOVIC: Ms. Hammett, you will remember sixteen or

fifteen years ago that you were bothered by our smoking two units far from you? A. Q. Yes. And do you remember that maybe neighbor on the

other side of the parking was smoking also? A. Q. Yes. But do you remember that Popovics' first door

neighbor on the other side were smoking? A. I don't know who that is. I don't know. What unit are you

referring to? Q.

Next to Popovics' unit, first-door neighbors,

married old couple, they both were smoking, and they were living there before we moved in. A. Q. smoking? A. Q. I don't remember them smoking. I'm sorry. Okay. -- after that, so you don't remember their They moved out --

How do you know it was the smoking from

Popovics; not from these neighbors? A. Because I would see the Popovics outside on

their patio smoking from my house. Q. But you didn't see these neighbors outside?

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A. Q.

I don't recall. Speaking inside, so the smoke was penetrating

through attic or -A. sorry. Q. Yeah. You recall Popovics smoking and hard and I don't recall them smoking actually. I'm

strong kind of tobacco? A. Q. A. Q. Yes. Have you ever smoked? No. So how do you know about various kinds of

tobacco or how do you know which one is strong and this one is mild? A. Q. You can smell it. The odor is different.

Do you know which brand I'm smoking, and which

brands I was smoking at that time? A. Q. Absolutely not. For your information, I was smoking, at that

time, mildest brand of American cigarettes, but that doesn't matter at this moment. MR. SZYMKOWICZ: the Popovic testimony. THE COURT: You have to ask her a question. For the record, we object to

BY MR. POPOVIC: Q. Have you ever been in the Popovic unit?

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A. Q. A. Q. A.

Yes. What was the occasion? Which unit are you referring to, the one -The one we are living now? You all gave us a bed frame for our son, and we Yes.

came and took it from your home. Q. arrived? A. Q. cigarette? A. Q. I don't remember. No.

Do you recall me smoking at that moment when you

You don't remember my apologizing for the

You don't remember you saying, Never mind.

I

don't mind smoking? A. I can't imagine that I said that, but if you

remember it that way. MR. POPOVIC: THE COURT: Okay. Thank you.

Redirect. REDIRECT EXAMINATION

BY MR. SZYMKOWICZ: Q. his house. Mr. Popovic asked you if you have ever been in Have you been in the house that he previously

lived in on your side of the court? A. Q. Yes. Did you go there while he was living there or

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after? A. I possibly have been in there one time while

they were living there, but I'm not a hundred percent sure of that. Q. A. Q. Did you go in the house after? Yes. What was the occasion of that? MR. GOECKE: Objection, Your Honor, completely

irrelevant, and anything she is going to say could be fairly prejudicial to my client; beyond the scope as well. MR. SZYMKOWICZ: Because it's my understanding

that the Popovic unit, when they left, there was a lot of tar residue, I think, on the walls, and I don't know if she saw that. If she didn't, then she can answer no. Did you see tar residue? I did. Okay.

THE COURT: THE WITNESS: THE COURT:

BY MR. SZYMKOWICZ: Q. A. Can you describe what you saw? The pictures -MR. GOECKE: THE COURT: Again, objection, Your Honor. Sustained. She saw tar residue.

MR. SZYMKOWICZ:

But, Your Honor, I think if she

is allowed to see the tar residue, she can describe what it looks like.

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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. you see?

Honestly, I don't really know what tar residue looks like, and there's varying degrees, I think. she is entitled to state what she saw, with all due respect. THE COURT: MR. GOECKE: identify tar residue. habits -MR. SZYMKOWICZ: Not cleaning habits. One question. What did She saw tar residue. I'm not sure she is qualified to I think the Popovics' cleaning I think

It's important to her. MR. GOECKE: THE COURT: THE WITNESS:

Totally irrelevant. Go ahead. What did you see?

The pictures had been removed from

the walls when they had moved out, and you could see a distinct outline on the wall. MR. SZYMKOWICZ: THE COURT: MR. POPOVIC: Your Honor. RECROSS-EXAMINATION BY MR. POPOVIC: You did say that you came to our unit to take I have no further questions.

Any based on that? I have one question, if I may,

bed for your son? A. Q. Yes. Is he still using that bed?

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A. Q.

Yes. But you don't feel tar residue or nicotine

residue in mattress? A. We didn't take the mattress. We did not take I

the mattress.

We left the wooden part of it outside.

washed and scrubbed it down before I took it in his room. MR. POPOVIC: You took the mattress also, but I

don't know what you did with it later on. THE COURT: When you lived at the old place,

when Mr. and Mrs. Popovic lived there, they were three units down? THE WITNESS: and theirs. THE COURT: there? THE WITNESS: THE COURT: Yes. There was a firewall between -You smelled things in the attic There were two units between ours

somewhere between your unit and theirs? THE WITNESS: wall. There are openings in the attic

In the firewall, there is openings. THE COURT: Anything based on my question? Not from us, Your Honor.

MR. SZYMKOWICZ: MR. GOECKE: THE COURT: down.

No, Your Honor. Thank you, ma'am. You may step

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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. seated.

THE COURT:

Next witness? Mr. Hammett.

MR. SZYMKOWICZ: (Witness sworn). THE DEPUTY CLERK:

Thank you.

You may be

Please state your first and last name, and spell them for the record THE WITNESS: First name is Kevin, K-E-V-I-N.

Last name is Hammett, H-A-M-M-E-T-T. THE DEPUTY CLERK: Thank you.

KEVIN HAMMETT, a witness produced on call of the Plaintiff, having first been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. SZYMKOWICZ: You are married to Carolyn, who testified

previously, correct? A. Q. Yes. And in the interest of time, you currently live

in a different place than the Schuman and Popovic -A. Q. A. Q. A. Yes. -- houses, correct? Yes, correct. But at some point, you lived in the same Court? Yes, yes.

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Q.

Where did you live in relation to David

Schuman's house? A. We lived at 11B Ridge Road, and Dave, I believe,

was 11Q; so, we lived across the Court. Q. between? A. Q. Yes. Did there come a time when the Popovics lived on And there would be a driveway and garage in

your side of the Court? A. Q. Yes. And did there come a time when the Popovics

moved to David's side? A. Q. Yes. Can you tell us how long you lived with the

Popovics and how long it was after that they moved to the Schuman side? A. Just without documentation, I could just give We moved into 11 Court in 1991, and we So my recollection is We lived

you a rough idea.

moved out in the Summer of 1998.

that the Popovics moved in, maybe, in '96, '97. at 11B.

I believe they were at 11E; so, these two units My understanding is they were renting. They were It's

between us.

the house might have been on the market.

renting that house, 11E, I believe, and then the house I guess across the Court became available, and they

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purchased that unit. Q. Did you have any problems with the Popovics'

smoking habits when they lived on your side? A. Q. A. Yes. And tell me about your personal problems? What I remember is very clearly that I don't

know the frequency, but I can say very clearly there was one evening in particular that my wife and I guess our kids around dinner time, we were sitting at our dining room table in our unit, which was on the Court side of our house. There was a Court side and garden side, and it was

very nice, mild, either late spring or early summer evening. Our windows were open; nice breeze blowing

through, and we were sitting there; all of a sudden, we noticed an odor, which was very strong; very clearly cigarette smoke, and as I recall, I went out on the -- we had never noticed it before; moved in '91; so, this was roughly '6, maybe '97. I lose track, but I went out to

see where it was coming from, and I noticed them sitting on their patio; I guess somewhere on their garden side; so, the smoke was wafting up; was coming into our unit; so, we closed our living room windows to try to, you know, stop the smoke from coming in, but it was a very -- never noticed it before, No. 1, and No. 2, it was a very strong type of cigarette smoke; didn't seem like the typical

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smoke.

Certainly, my 52 years now, but I have been around

cigarette smoke, but this was a stronger odor; very noticeable in our house. Q. A. We had to close our windows.

Did it cause you any health effects? Not that I'm aware of. We didn't have any. We

didn't, you know, nothing out right that I'm aware of. It was a nuisance. It was irritating to have. I like to -- if

I'm very much an outdoors type of person.

I don't have to run my air conditioner, I would rather just have the windows open, hear the sounds of summer and breeze coming in, fresh air; so, to have to close our windows to shut that out, that was a bit disappointing, but it didn't cause any problems that I'm aware of from a health perspective. Q. How often did that happen where the Popovics

smoking on your side caused you to take action in your house? A. See, it's been so many years, I can't say with I can say that I very clearly We are talking, what,'98, 2008,

any real certitude.

remember that instance.

thirteen years now I guess; actually more, because it was '96, '97; so, I can't say, but I expect it was more than that one time, but that one time is what really still is in my memory that it was, you know. We had never noticed

it before, and it was very clear that night that both the

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odor, the experience and the source of it. Q. Moving along to when the Popovics moved across

the Court to next door to the Schuman house, did you ever personally have a problem with the Popovics smoking while visiting the Schuman house? A. I certainly noticed, you know, the odor, and I

know that, I guess, additionally, on nice evenings, once again, type of evening that I was describing at our house when we lived in 11 Court, on similar evenings at Dave's house, he would have his air conditioner running and windows closed up to try to -- I guess, if they were sitting out on their patio or their porch, he would have taken those measures to -MR. FISHER: Objection, Your Honor. I think

he's speculating as to why Mr. Schuman had the air conditioner on. THE WITNESS: I don't think I am because I think

Dave had mentioned that to me. THE COURT: MR. FISHER: Still be an objection. Thank you. Sustained.

BY MR. SZYMKOWICZ: Q. While you were there, did Mr. Schuman have to

take action to protect himself against the Popovics' secondhand smoke? MR. FISHER: Objection, Your Honor. Calls

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for -THE COURT: THE WITNESS: You can say what you observed. I observed Dave's air conditioner

running and his windows closed up. BY MR. SZYMKOWICZ: Q. A. Do you know why they were closed? Because the cigarette smoke. MR. GOECKE: THE COURT: Objection, Your Honor. Sustained. Was there ever a time when

MR. SZYMKOWICZ:

Mr. Schuman, while you were there, had to close his windows in your presence because the Popovics' smoking? A. I believe so, yes. Once again, this is a very

long period of time, but I believe so, yes. Q. You testified earlier as to when you noticed the Can you

smell of secondhand smoke at the Schuman house.

tell me about what you smelled; where it was when you smelled it? A. Just a cigarette odor, and you know, we would go

over to Dave's house for dinner; so we normally sat in his kitchen dining room area; so, it might have been there. We certainly primarily were on the first floor; so, could have been in his living room. Once again, it doesn't

stand out in my memory that this spot, there was a definite odor. This is where I recall as clearly as I do

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in my house previously, but there was definitely an odor, and I would say primarily on the first floor. Q. closed? A. Probably both. Probably both. As I said; I And would that be with the windows open or

tried to mention earlier, I think there were times when -there were times when we would show up and the air conditioner would be on; still notice a little bit of an odor. There were times -- I believe there was a time

where Dave took the same measures that I had taken at our house a few years earlier, where he had to close his windows and in that same type of situation, but once again. Q. A. Q. You were there when he closed windows? (Witness nods head up and down). How often have you been to the Schuman house

since the Popovics had moved to his side? A. It's hard to say. Dave and I are good friends.

We started -- he moved into the Court; we got to know each other. We ended up -- we share a strong interest in

running, so there was a time period, before I sprained my ankle, that we would get together at least three days a week to run. We actually ran a marathon together back in Certainly that year --

2002, Marine Corps Marathon 2002.

we have a very long history of getting together, and Dave

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is the kind of person, you know, regardless of whether we were running or what, would invite us down from time to time to have dinner. You know, he travels a lot. He

would show us slides; invite groups of people to show slides of his travels; so, there are countless times that my wife, my kids and I have been in Dave's house for dinner or just to visit. Q. And of those times, what percentage of the times

that you have been to his house were you personally bothered by it, secondhand smoke problem? A. It's hard to say. It's very hard to say. I

don't know.

Half the time, a third of the time.

It's

very hard to say. MR. SZYMKOWICZ: questions. THE COURT: MR. GOECKE: Cross. Thank you, Your Honor. Okay. I have no further

CROSS-EXAMINATION BY MR. GOECKE: Q. Mr. Hammett, I would just like to talk a bit You enjoy

about your experience living at GHI generally. living at Greenbelt houses, is that right? A. Q. A. Yes.

You find it to be a pleasant environment? Yes.

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Q. A. Q. A.

And it's a big place, right, 1600 units there? Yes. But still has a since of community? Yes. MR. SZYMKOWICZ: Your Honor, this goes beyond

the scope of my Direct. THE COURT: Go ahead. Goes to bias.

BY MR. GOECKE: Q. I think you also mentioned before there's an

eclectic group of people? MR. SZYMKOWICZ: Again, objection. Definitely

not an issue in this case, what kind of people live there. THE COURT: Sustained.

BY MR. GOECKE: Q. Homes? A. Q. A. Q. the years? MR. SZYMKOWICZ: anything that we discussed. MR. GOECKE: Your Honor, they are alleging that Objection, this is way beyond No. You attend the annual meetings though? Yes. So are you familiar with the Board members over Have you ever served on the Board of Greenbelt

the Board was -- maliciously, intentionally took actions

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to assault Mr. Schuman and impose undue hardships; so, I want to get the opinion of other people, Greenbelt Homes; what has been their reaction to the Board. character is at issue. THE COURT: purpose. You can call witnesses for that His direct testimony Their

This is his witness.

didn't go to that.

You are certainly welcome to present

that evidence, but you need to do it through your own witnesses. MR. GOECKE: Fine, Your Honor. Additionally, Your Honor, that It's a breach of contract

MR. SZYMKOWICZ:

mischaracterizes our complaint. and negligence.

The malicious aspect may or may not be in

the complaint, but it's certainly not relevant for the counts we have before us. THE COURT: For now, with this witness, I'll

sustain the objection. BY MR. GOECKE: Q. Putting aside your happiness at Greenbelt Homes,

let's talk about your experience when the Popovics were your neighbors. You talked about one instance, right,

where the smell was exceptionly bad? A. Q. Yes. And you remembered that because it was an

unusual occurrence, isn't that right?

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A.

It was an unusual occurrence in the sense that

they had just shortly before moved in, and it had never happened before, and so it was very jarring in that sense because previously we had lived there, what, since the Spring of '91, we moved in, and let's see, roughly the Spring of '95; so, four years had gone by without that type of situation, that experience, so this was very much a new situation that we had encountered. Q. But it's that one instance that really stands

out in your mind as being the most severe instance, correct? A. Yes, because it was the first time. As I said,

I'm 52 years old now. ago.

We moved out of the Court 13 years

They moved to the other side of the Court prior to

us moving out; so, you are talking a considerable amount of time, but that's what strikes me as most of my memory all these years later is I remember the situation, and surprisingly, even though we were on the other side of our house from where the smoke was coming in, it was very strong. Q. night? A. Q. A. Yes. That solved the problem? If you call that solving the problem. It forced you to close your windows on that

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Q.

Let me rephrase it.

It prevented smoke from

continuing? A. Q. A. It prevented smoke from coming in. But it deprived you of your enjoyment? Of fresh air coming in. If that was something

that we had experienced a lot of, you know, we would have to have taken additional measures, but when you are saying solved the problem, it was a temporary solution that evening, but it was, to me, wasn't a very desirable one. Q. solution? A. Q. Yes. I think you testified before, closing the So it was an undesirable solution, but it was a

windows was inconvenient? A. Well, when you say inconvenience, yes, I had to

get up across our living room and close the windows; so, yes, that's inconvenience, but as speaking more to the, you know, this whole desirable undesirable, I like fresh air coming into my house, and you know, if it's not hot and humid outside, if it's not bitter cold outside, it's nice to have a nice breeze coming in, and that was the situation that evening. There was some days, in That was the

particular, where it's very desirable.

situation that evening, and to have had to do that seems to me very undesirable.

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Q. A. Q. A. Q. A. Q. A.

It upset you that you had to do that? Yes. Did you complain to Greenbelt Homes? No. Did you complain to the Popovics? No. Did you complain to anyone? We complained to ourselves, maybe, some. I

don't know if we mentioned -- as I say, it's been so many years, but when you mention this, I'm not -Q. okay. Closing your windows, although an inconvenience, disappointing, it's not a nuisance? A. Q. A. Yeah, it is a nuisance. In your opinion, it is a nuisance? Very much so. Why should I have to do that when I think you answered my question, Mr. Hammett,

I have as much of a right to have fresh air coming into my house as the Popovics have to smoke. Q. But you agree that the Popovics have a right to

smoke, don't you? A. It's not illegal to smoke, and so they have a The problem is I --

right to smoke. Q.

You testified at your deposition that they have

a right to smoke?

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MR. SZYMKOWICZ: Mr. Goecke interrupted. THE WITNESS: THE COURT: THE WITNESS:

Your Honor, I believe that

What I'm trying to say is that -Go ahead. -- seems to me this proceeding,

this whole proceeding has been very much focused on the Popovics' right to smoke. I feel like I, as a Greenbelt

Homes member and resident, have a right to not smell somebody elses smoke, and that's where those two rides collide. That's the issue here. And speaking to your questions earlier, I feel like there was a failure there with the cooperative. feel like they had a chance to do something. I

I feel like

I'm not the only person in GHI who doesn't like to smell cigarette smoke. I'm sure I'm not the only person who

likes to have my windows open. Q. Part of this case, Mr. Hammett, is about

Mr. Schuman trying to get $600,000.00 from Greenbelt because they failed to prevent the Popovics from smoking. They failed to make Mr. and Mrs. Popovic stop smoking. Did you know that? A. I don't know all the particulars of the case. I

can't say that I know that. Q. Thank you. You know that quitting smoking is a

different thing, don't you?

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A. Q.

Yes. You have had personal experience with this,

haven't you? A. Q. didn't he? A. Q. A. Q. A. Yes. To the point where he would cough up blood? Yes. He had children? Yes. MR. SZYMKOWICZ: Your Honor, I object. Again With my brother, yes. In fact, your brother smoked for a long time,

outside the scope and irrelevant. THE WITNESS: THE COURT: THE WITNESS: BY MR. GOECKE: Q. A. It would be very difficult, Mr. -Not to get an addict to quit smoking. Be very Also his children, he has quit -You have gone far enough. We have gone far afield.

difficult for Greenbelt -MR. SZYMKOWICZ: speculation. Objection. Calls for

Good question for us. I have withdrawn it, Your Honor.

MR. GOECKE:

BY MR. GOECKE: Q. When you moved into Greenbelt Homes, there was

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no rule prohibiting them from smoking, was there? A. No, not that I'm aware of. MR. SZYMKOWICZ: Your Honor, I object. This

calls for a legal conclusion. BY MR. GOECKE: Q. GHI? A. Yes. THE COURT: contract or -THE WITNESS: I know there are smokers in GHI, Are you aware of anything in your If you are aware, do you have a contract with

so I'm pretty sure there is nothing against smoking. THE COURT: contract? THE WITNESS: MR. GOECKE: Yes. Court's indulgence? Nothing you are aware of in your

BY MR. GOECKE: Q. Just briefly, Mr. Hammett, talking about the

times you did go to Mr. Schuman's unit, I believe you testified before you did not smell smoke every time you went to his unit, did you? A. Q. A. That's probably correct, yes. It was worse when the window was open? Certainly, but I know there were times -- I

guess everything, whether it was the dead of winter or

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whether it was middle of summer with air conditioning on, that you could smell some trace of cigarette smoke. Q. Can you point to one time since March of 2010

when you smelled smoke in Mr. Schuman's unit? A. Q. A. I think that's kind of -I know it's difficult. Are you able to do that?

I don't think I can because I don't zero in on I can pull some years out of my

those type of things.

head and memories, but when it comes to specific dates. Q. For example, Mr. Schuman renovated his kitchen

in 2009, correct? A. kitchen. Q. I couldn't tell you. I know he renovated his

I don't know what year it was. Let's assume it was 2009. You have been to his

unit since it was renovated, correct? A. Q. Yes. Do you remember any occasion smelling cigarette

smoke in his unit after it was renovated? A. I can't recall what time period it was. I would

assume so, but I don't know for sure, but since that was 2009, we have been visiting Mr. Schuman for many years prior to that, and we were noticing the smoke prior to that. Q. A. You noticed it over several years? Yes.

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Q. A.

Dating all the way back to 1997? Whenever -- once again, whenever it was they

moved across the Court, yes. Q. Just to be clear because obviously his apartment

looked a lot different; you were eating in his kitchen or dining room area; so, you would see the kitchen where it was remodeled. You don't recall where you smelled smoke

eating in his home after the renovations? A. I'm sure we still noticed it after that, but To me,

what I'm saying, it's not I don't recall.

renovation, no renovation -- prior to renovation, prerenovation, post-renovation, I don't think that had a huge impact on my senses as to there's a change here. MR. GOECKE: THE COURT: MR. POPOVIC: THE COURT: No further questions, Your Honor. Mr. Popovic? Yes, sir. Redirect. I have one question, Your

MR. SZYMKOWICZ: Honor.

REDIRECT EXAMINATION BY MR. SZYMKOWICZ: Q. While GHI may not have a specific rule

prohibiting smoking, do you believe that the GHI rules, in general, can prohibit somebody from smoking in certain circumstances?

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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. step down. questions. question.

MR. FISHER:

Objection, Your Honor.

Calls for

speculation, legal conclusion. MR. SZYMKOWICZ: They opened the door with this

THE COURT: conclusion.

That would call for a legal

MR. SZYMKOWICZ: conclusion. THE COURT:

Original question was a legal

Then I revised the question to see

if he recalled anything in his contract that prohibited smoking. I'll sustain that. MR. SZYMKOWICZ: Okay. Then I have no further

THE COURT:

Thank you.

Thank you, sir.

You may

(Off the record discussion ensued.) THE COURT: THE WITNESS: THE COURT: THE WITNESS: Back to the Courthouse already. I'm retired now. I know. I would say it was a treat but. Raise your right hand.

THE DEPUTY CLERK: (Witness sworn). THE DEPUTY CLERK:

Thank you.

You may be

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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. currently? A.

State your first and last name, and spell it for the record. THE WITNESS: My first name is Dorothy,

D-O-R-O-T-H-Y; last name is Ipolito, I-P-O-L-I-T-O. DOROTHY IPOLITO, a witness produced on call of the Plaintiff, having first been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. SZYMKOWICZ: You go by Dory? Also go by Dory. Can you tell me what you do for a living

Currently, nothing.

I have retired from 20

years in the State's Attorney's Office. Q. A. Q. A. Q. correct? A. Q. A. Correct. Where do you live? I live at 11S Ridge Road in Greenbelt. That's So you worked in this Courthouse? Yes, I did. You were a prosecutor? Yes, I was. Now, you are spending a lot more time at home,

the Greenbelt Homes, Inc.

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Q.

In relation to Mr. Schuman's unit, Mr. Popovic's

unit, where is your unit? A. Mr. Popovic's unit would be between my unit and

Mr. Schuman's unit. Q. And can you describe the physical layout of your

row of houses? A. I believe eight, eight adjoining units. Brick,

brick townhomes. Q. A. Q. A. Q. A. Q. A. Q. And they are all two or three bedrooms? Yeah, I believe so. Can you tell me when the Popovics moved in? I believe it was in '96 or '97. And when did Mr. Schuman move in? I believe '95. When did you move in? 'Ninety-three, November of '93. What is your understanding of Mr. Schuman's

complaint in this Court about the Popovics? A. Well, I believe that Mr. Schuman is raising a

complaint about -MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. It's no secret. Go ahead.

-- about the smoke infiltration

indoors and outdoors caused by the Popovics. BY MR. SZYMKOWICZ:

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Q.

Have you ever suffered the same kinds of

problems that Mr. Schuman is alleging in this case? A. Yes. MR. FISHER: she suffered. Objection. She can testify what

To say it's the same as Mr. Schuman, we I think the question

haven't heard from Mr. Schuman.

needs to be a little more specific. THE COURT: At least at this point, when she

suffers the same problems, she also smells smoke; beyond that. BY MR. SZYMKOWICZ: Q. A. What is your complaint against the Popovics? That when they smoke, when I say "they," it

would be Ms. Svetlana, who is no longer -- Mr. Popovic's wife who no longer smokes, Mr. Popovic, when they smoked; at one point, when they smoked indoors and now still when Mr. Popovic smokes outdoors, smoke comes into my unit. Q. Can you tell me when you first noticed the

problem with the Popovics smoking? A. Q. That would be when they moved in. Okay. And did the problem ever get to the level

where you personally had to make a complaint to somebody about their smoking? A. Q. Yeah, I did. I complained to GHI.

That was a joint complaint with Mr. Schuman?

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A. Q. A.

There were joint and individual complaints. And when did this take place? This, I believe, started in '96 and continued I believe that there was some sort of I'm not sure what the correct term

through '97.

hearing or meeting.

is; say meeting between GHI, and the Popovics, and Mr. Schuman, and myself and Barbara Bejanes, B-E-J-A-N-E-S. Q. A. Q. She is your roommate? She is my partner and co-owner of the townhome. When you had this complaint, what exactly were

you complaining about? A. Well, complaining at that point, we were

complaining about the smoke that was coming from the Popovics' unit into our house. our living room. We have a common wall from

I guess our living room abutts their

living room, and we were getting smoke in our living room, and the two bedrooms that share that common wall; also, we were getting smoke from the attic coming down from the attic. Q. A. And how did that complaint resolve itself? If I remember correctly, I believe there was a

letter from a member of the Board that basically said, We are going to take some remedial steps and see how it goes. Part of the remedial steps were sealing, like caulking the

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wall, that common -- our side of the common wall; so, they sealed with caulk and around the floorboards, with a clear caulk, around the ceiling, around the floor and around the electrical outlets. Q. A. Q. A. Q. And did that take care of the problem? Not completely. And what year was the caulking done? I believe that was in '97, but I'm not sure. And did you make any complaints about the

Popovics smoking after 1997? A. Q. A. Q. A. There were -- yeah, there were more complaints. Who did you make these complaints to? Back to GHI specifically, to Ms. Overdurff. What was your complaint to her? Basically, that we were still having problems

with smoke infiltration. Q. A. Q. A. Q. A. What year was this or years? That would have to be, I would say, '98, '99. Was anything done by GHI? No, nothing was done by GHI. How come you didn't take it to the next level? I think because during the time -- around the

time when GHI did the sealing, we bought -- we had bought a HEPA air filter. We also installed ceiling fans. We

tried to do remedial actions in our unit because when the

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smoke would come in from the house being closed up, it was worse in the winter when the units are closed up. In the

summer, it was coming from outside, okay, so what we had to deal with the smoke from outside the unit was to install ceiling fans and, basically, close windows and run the air conditioners. Q. In terms of the smoke that came in during the

winter, we tried to use a HEPA air filter, and none of those -- none of those were really -- well, obviously, closing the window, running the air conditioning, running the fan gets rid of the smell, but as I have come to learn, that doesn't really deal with the health issue. MR. FISHER: Objection, Your Honor.

BY MR. SZYMKOWICZ: Q. So why didn't you take it to another level,

whatever level that would be? A. I was fairly frustrated with the lack of action

on the part of the co-op. Q. You're an attorney. You know you have got

remedies here inside the Court, the building in which you worked? A. Yes, I understand. I guess I got so used to

living with it, that I just tolerated it until it got to the point where it wasn't tolerable anymore. Q. What happened when it wasn't tolerable anymore?

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A.

What made it worse for me, I'm asthmatic, and I Wasn't just me, but my

found that -- well, I didn't.

allergist and the person I see for my asthma, I was seeing more frequently because I was having to use my rescue inhaler. What a rescue inhaler is, it's albuterol. I

guess it's pretty common to most folks that have asthma (indicating). Q. inhaler? A. Yes. Yeah, basically, what was happening, I For the record, you're holding up a rescue

would have to use it more, and I'm not really big on taking medicines unless I absolutely have to use them. MR. FISHER: Your Honor, I'm going to object in

terms of relevancy at this point to the testimony. THE COURT: THE WITNESS: It's all right. And that's what made it more

intolerable, the fact that it was affecting my breathing. MR. FISHER: speculation. THE COURT: Sustained. Objection, Your Honor. Calls for

BY MR. SZYMKOWICZ: Q. At what point did the Popovics' smoking, in your

opinion, start to affect your health? MR. FISHER: THE COURT: Objection, Your Honor. In your opinion, go ahead.

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THE WITNESS: a specific date.

I would say that it's hard to say

I can tell you when I would say probably I

around like maybe early 2000s, 2002/2003 in there.

figure it was a period of time when both of them were smoking, and I know now, for a fact, that Mrs. Popovic is ill and does not smoke, and from the last hearing, I know that Mr. Popovic does not smoke in the house anymore. BY MR. SZYMKOWICZ: I want you to be very explicit with your medical

injuries, for lack of a better word, that you believe are caused by the Popovics' smoking -MR. FISHER: Objection, Your Honor.

BY MR. SZYMKOWICZ: -- at a specific point when you are perceiving

this with you senses? THE COURT: You can say what you perceive with

your senses medically; unless at some point you become qualified as a physician, I don't think we are going to get a medical diagnosis. MR. SZYMKOWICZ: But, Your Honor, I think she is

able to testify as to what she is perceiving. THE COURT: What she smells, whatever her senses

MR. SZYMKOWICZ:

And her body's reaction to

I think she can testify.

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THE COURT: THE WITNESS: THE COURT: THE WITNESS:

Say what -Okay. She observes. Okay. When smoke, smoke either

comes into the unit through the windows or I'm in the backyard, which is fairly rare, and I smell -- if it is heavy enough, if I'm getting enough of it, it will trigger wheezing, and I have to use the rescue inhaler to assist my breathing. Q. How often does that happen? Strike that. How often has that happened over the years when you were faced with the situation at your house? MR. FISHER: Your Honor, just for the record,

I'm going to object in terms of this line of questioning; in terms of relevance as well as to any assessment of Ms. Ipolito's interpretation of what was triggering her asthmatic reactions. THE COURT: She can certainly say when she

smells smoke, it coincides with the time she has trouble breathing. That's an observation. THE WITNESS: Yes, that's basically -- thank

That's basically what I said when -- I don't mean to If I'm like Smoke

say it's only when Mr. Popovic smokes.

anywhere where there is smoke, it will trigger it.

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triggers my asthma.

Probably being behind the bus would

trigger it; anything that affects my ability to take in air. BY MR. SZYMKOWICZ: Q. So what specifically -- when you smell the

smoke, what specifically do you feel in your body that you believe causes this problem? A. All I can tell you, what happens when I have an I feel like I

asthma attack, like my chest tightens.

can't breathe, and I need to get to the rescue inhaler, okay, and I carry one with me all the time because, unfortunately, you get exposed to all sorts of things, smoke, other things that can trigger it. Q. And does this typically happen when you are

outside in your yard or does it happen also when you are inside your house? MR. FISHER: THE COURT: Your Honor, I object to that. Rephrase.

BY MR. SZYMKOWICZ: Q. Are you specifically on your property or in your

house when these situations have presented themselves over the years? A. Okay. More outside, but if, for example, if I

forget to shut the windows on the back of the house, the garden side, however you want to describe it, which is

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where Mr. Popovic smokes, and I come home, and the house has been closed up; the house fills up with smoke, that will trigger it. Q. A. Q. Every time? Yeah. Can you tell me about the Popovics' smoking

habits, whether they remained the same over the period of time they lived there or if they changed in any noticeable fashion as far as you can tell? MR. FISHER: Objection, Your Honor. Lacks

foundation in terms of her knowledge of their history of smoking. No testimony as to what she observed. THE COURT: THE WITNESS: You can testify what you observed. At one point, both Popovics were

smoking, and that was for, you know, from the time that they moved in. I believe there was a period of time when

Mrs. Popovic stopped for awhile, and I know now she doesn't. She honestly doesn't smoke due to her health

condition. BY MR. SZYMKOWICZ: Q. There's an allegation in this case that

Mr. Schuman -MR. FISHER: THE COURT: Objection, Your Honor, leading. Haven't heard the question yet.

BY MR. SZYMKOWICZ:

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Q.

-- had a problem with the smoking in the late

'90's; didn't do anything about it in the mid 2000's, and then in 2008 or '9, started complaining again. MR. FISHER: testifying, Your Honor. these issues. THE COURT: Got to hear the question. That was the question, Your Objection, Your Honor. He's

This witness hasn't discussed

MR. SZYMKOWICZ: Honor.

BY MR. SZYMKOWICZ: Q. There's an allegation that there was smoking in

late '90's, that it continued, and Mr. Schuman again started complaining in the late 2000's, first decade. you know if there was a reason that there was no complaints from Mr. Schuman or you during that period of time? MR. FISHER: THE COURT: Objection. You can testify if you know if there Do

were any complaints from you, but not Mr. Schuman. THE WITNESS: I guess all I can say is I hate to

say that we got used to it because it's, you know, in my mind, it's not a great way to live, you know. When he

smokes, I have to shut the windows, turn on the fans, and I end up being a captive in my own house while he gets to sit out on the porch. I have a screened-in porch. I

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don't get to use it when he's out smoking; so, I don't. Like I said, unfortunately, I got used to living that way. I don't want to live that way, but I didn't seem to have any options. I wasn't getting any help from the co-op, so

I guess I just put up with it. Q. With regard to your screened-in porch, when did

you put the screened-in porch in? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. That's all right. Go ahead. I want

I don't remember exactly.

to say less -- less than maybe five, six years old. Q. How many times have you gotten to use your

screened-in porch? A. Well -MR. FISHER: Objection, Your Honor.

Ms. Ipolito, while they may pertain to her experiences, she is not a Plaintiff in this case, and I think we are getting really far afield in terms of relevancy. MR. SZYMKOWICZ: the -THE COURT: Sustained. It goes to the recent use of But, Your Honor, it goes to

MR. SZYMKOWICZ:

the premises of the people in GHI. THE COURT: case. Mr. Schuman is the Plaintiff in this

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MR. SZYMKOWICZ:

How can -- you are not a

Plaintiff with Mr. Schuman in this case? MR. FISHER: THE COURT: Objection, Your Honor. Sustained.

BY MR. SZYMKOWICZ: Did the Popovics' smoking ever force you to use

your property or not use your property in a manner in which you would like to? MR. FISHER: Objection, Your Honor. Doesn't

have to do with Mr. Schuman as a Plaintiff in this case yet again. THE COURT: I'll allow it. I think she pretty much answered it.

Go ahead. Well, let me answer it this way:

THE WITNESS:

Last weekend, I think Saturday or Sunday was a really nice day. There was a breeze. It was fairly temperate in I like to

terms of the weather that we have had lately.

keep my windows open; like to have a little breeze blow through the house. I grew up in Buffalo. I'm not a big

air conditioning -- I didn't know about air conditioning the house until I moved down here. I don't like to live

all cooped up, and I guess my feeling is when the Popovics smoke, I have to shut the windows, okay; otherwise, the apartment fills up with smoke, so that means I don't get to use my house the way I want to use it. Okay. I mean,

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I would like to have the windows opened. windows open. Q. patterns? MR. FISHER:

I can't have the

Has the Popovics' smoking changed your sleeping

Objection, Your Honor.

We are

getting far afield again. MR. SZYMKOWICZ:

She is not a Plaintiff. Strike that.

BY MR. SZYMKOWICZ: Q. Has the Popovics' smoking forced you to sleep in

different areas of your house? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. Go ahead. Yes. If -- well, for example, if

we can't run the fans or the air conditioner due to a PEPCO outage, and there's smoking, the only thing you can do, like if it's hot -- you want to keep the windows open; so, we have had times where the power has been out. have been smoking, and I have been in the front room, front bedroom, small bedroom; so, that I can sleep and breathe. BY MR. SZYMKOWICZ: Q. What is the material between your wall and the They

Popovics' house? A. Okay. The only reason that I know this is that

I talked to the maintenance guys when they did caulking,

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and I believe the wall between my unit and Popovics' unit is solid, like blocks, cinder blocks. There's space, I

believe, that is like considered like a firewall or something like that, and then there's the blocks or cinder blocks that form the outside of the Popovic's residence. Q. And then on the wall with your other next-door

neighbor, is that a different kind of material? A. That's a different type of wall, and that I have

seen because we had the medicine cabinet replaced, and when you take out our medicine cabinet, I can see the back of my neighbor's medicine cabinet. I can also see two by

fours, chicken wire, and there's like -- it's all the electrical and plumbing kind of runs up that wall, very porous wall. It's obviously more open than the wall that

is made out of the cinder blocks. Q. So, to your knowledge, the Popovics have a

cinder block wall, the way you described it, on the wall they share with you? A. Q. Correct, that wall in the living room, yeah. And they would have the chicken wire wall on the

wall that they share? A. That would be the wall that, yeah, because

that's where the electrical, the fuse box is, and that's where all the plumbing runs. Q. Have you ever been to Mr. Schuman's property?

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A. Q. A. Q. A.

Yes. Either outside or inside? Uh-huh, both. How many times? Too many to count. Probably -- well, he's been

there a long time. Q. Have you ever smelled the presence of secondhand

smoke at the Schuman residence? A. Q. Yes, I have. Can you tell me what it smells like, if you can

articulate that? A. Stale smoke. It smells like somebody has been

smoking in the unit. Q. And is the smell of smoke different in the

Schuman unit as you perceive as it is in your unit? A. Q. A. Yes. Can you articulate the differences? More in Dave's than -- or in Mr. Schuman's than

in our house. Q. A. Do you know why? I understand -MR. FISHER: THE COURT: Objection. Sustained.

BY MR. SZYMKOWICZ: Q. Have you ever had any health effects due to the

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presence of the smoke in the Schuman house? A. Well, you know, I hate to drink and run, but if

there's a lot of smoke -- at the times when there is a lot of smoke in Mr. Schuman's apartment, I wouldn't hang around for very long. Q. Did you have a chance to review this Court's

order on the preliminary injunction motion? A. Yes, I did. MR. SZYMKOWICZ: THE COURT: Yes. May I approach, Your Honor?

BY MR. SZYMKOWICZ: Q. I direct your attention to page seven of that

order where the Court states, quote, "Perhaps more persuasive is the evidence that Mr. Schuman has not taken action to abate the problem through the use of fans or a HEPA filter. While Mr. Repace testified that such efforts

would not suffice, the neighbor on the other side of Mr. and Mrs. Popovic reported some success through the use of fans, " end quote. Are you the neighbor referred to in this paragraph? MR. FISHER: THE COURT: referred to. THE WITNESS: Thank you, Your Honor. Objection, Your Honor. I'll state that that's the neighbor

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BY MR. SZYMKOWICZ: Do you believe the statement was accurate, with

all due respect to Judge Northrop, in ridding your unit of secondhand smoke? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. Go ahead. Can you repeat?

BY MR. SZYMKOWICZ: Do you believe that the use of the fans and the

HEPA filter were successful in ridding your unit of secondhand smoke? MR. FISHER: Again, Your Honor, for the record,

I'm going to object to this line of questioning with respect to her interpretation of the Court's findings. MR. SZYMKOWICZ: I'm asking what her belief is

with respect to use of the HEPA, fans? THE WITNESS: HEPA; not a HIPPA. of smoke. Well, I think -- I think it's

That didn't rid -- didn't rid the unit

In fact, I believe we gave the Popovics an air

filter to use, and they weren't successful with it either. What the fans do is clear the room of smoke, the aroma of the smoke. I don't know what it does. I'm a retired lawyer. the smell. I'm not a scientist.

All I know is that it gets rid of

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Q.

Did the use of the fans have any, or the HEPA

filter, have any impact on the smoke coming from the patio? MR. FISHER: Objection, Your Honor. I don't

think she can testify, as she indicated herself, as to the actual process with respect to how the HEPA filter processes the smoke, what it does. is it clears the air. THE COURT: THE WITNESS: Have you observed any difference? Well, fortunately, Your Honor, What she testified to

there was never a time when there was like a blue haze in our unit. It would clear -- like I said, the fans will What we found

get the smoke eventually out of the room.

with the HEPA filter was that the -- either the filtering system that we used was either too small for the space that was polluted; it just wasn't getting the job done. Q. I direct your attention to page seven of Judge

Northrop's Order of last year after the preliminary injunction hearing. THE COURT: Going to have to order a transcript;

make sure I get my quotes right. BY MR. SZYMKOWICZ: Q. It says, quote, "While recognizing the dangers

of secondhand smoke and the elevated risk to one's health, the Court has not received evidence in this case

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demonstrating actual damage to the Plaintiff other than the offensive odor." Period. "There is no medical

evidence demonstrating an unfavorable health condition that has actually been suffered by Mr. Schuman," period, end quotes. Do you believe that you have suffered actual damage, other than the offensive odor due to the Popovics' smoking. MR. FISHER: THE COURT: Objection, Your Honor. Sustained. Now we are getting into

the diagnosis part, medical diagnosis. (Off the record discussion ensued.) BY MR. SZYMKOWICZ: Q. Do you believe that the Popovics' smoking has

caused you to have unfavorable health conditions? A. Absolutely. MR. FISHER: Objection. Not relevant as

Mr. Schuman is the Plaintiff in this case. THE COURT: Sustained.

BY MR. SZYMKOWICZ: Q. I direct your attention to page nineteen of the Have you taken a look at

Court of Special Appeals Order.

this, the Court of Special Appeals Order? A. Q. No, I haven't. I direct your attention to the second paragraph.

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I'll let you read it first.

That paragraph states, quote,

"The Court pointed out that Ms. Ipolito's testimony established that 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 Period. "All

no harm was being caused to Mr. Schuman."

he would have to do to eliminate any offensive odor from the outdoor patio smoking would be 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

had not made any effort to try this simple solution." Do you believe your use of the fan and shutting your windows completely solved the problem? A. No. MR. FISHER: Objection, Your Honor. Again,

Your Honor, Mr. Szymkowicz continues to present these types of materials to this Court. of Appeals. This is not the Court The interpretation

We are not here on Cert.

of the Court of Special Appeals' findings and testimony isn't relevant to Mr. Schuman's case here today at trial. That was a preliminary injunction hearing. We are here at

trial; while findings of fact in that case may have beared some respect to the preliminary injunction hearing, we are

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here at trial. case, do it now.

If he wants to present testimony in this I don't see how it's relevant. I'll point out also, Judge Eyler had I didn't, and her I don't think we

THE COURT:

the benefit of the transcript.

interpretations are her interpretations.

can rely on anybody that is here today to amplify to Judge Eyler's interpretations. I'll sustain the objection. BY MR. SZYMKOWICZ: Q. Well, do you believe that your using of the fan

and shutting the windows solved the problems of the Popovics' outdoor smoking? A. Q. A. Not completely. Why is that? I think it's one thing to get rid of the odor,

and it's another thing to get rid of whatever it is that causes cancer. MR. FISHER: speculation. She -That's her belief. I'll allow it. Objection, Your Honor. Calls for

THE COURT: It goes to weight.

MR. SZYMKOWICZ: THE COURT: MR. FISHER:

I have no further questions.

How long do you anticipate? Going to be some time, Your Honor.

May want to take your lunch break now.

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THE COURT:

Probably time to go to lunch.

1:30.

(Recess - Lunch). THE COURT: MR. FISHER: Mr. Fisher. Thank you.

CROSS-EXAMINATION BY MR. FISHER: Ms. Ipolito, you have testified that the

problems with the complaints from secondhand smoke, at least to your unit, began back in 1996, 1997 when the Popovics moved in next to you. A. Q. Correct. Were you and your partner living together at

that time in the unit? A. Q. Yes, sir. Since the inception of the Popovics moving into

their unit, you and your partner -- I forget her last name. A. I apologize. Barbara Bejanes. BY MR. FISHER: -- Bejanes lived next door to

Mr. and Mrs. Popovic? A. Q. Yes. At the same time, Mr. Schuman lived on the other

side of Mr. and Mrs. Popovic? A. Yeah, after '95, I believe Mr. Schuman was on

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the other side. Q. And early on, there were complaints initiated by

you, after the Popovics moved, together with Mr. Schuman to Greenbelt Homes regarding issues, correct? A. Yes, we were -- also complaints that were

initiated by us, me, Bejanes and myself. Q. A. manager. And those complaints went to whom at GHI? They went to Ms. Overdurff, who is the general I believe they also went into -- I think at the

time, I want to say Jay Freeman was the head of Technical Services at the time. Q. exhibits. There's no notebook in front of you with Direct your attention to Exhibit No. 15,

Defendant's Exhibit No. 15, which has previously been marked. A. Q. A. Q. July 12th, 1997. Should be August 12th? I'm sorry, August 12. Do you recognize that letter that was sent to

you by Eldon Ralph, Director of Physical Plant Operations from GHI? A. Q. Yes, sir. Do you recall receiving that letter from GHI

back in 1997? A. Yes, I do, sir.

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MR. FISHER:

Your Honor, I move to admit Defense

Exhibit No. 15 into evidence. MR. SZYMKOWICZ: THE COURT: No objection, Your Honor.

It will be admitted.

(Whereupon, Defendant's Exhibit No. 15, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Ms. Ipolito, am I correct that this letter was

in response to one of the complaints you made to GHI regarding the problems? A. Yes, sir, I think this was before. This was

when they did the sealing of our unit. Q. And do you recall what they refer to here as

investigator, so to speak, from GHI came out to your unit to do some work? A. Says, "Maintenance workers visited your home

July 30, 1997 to seal all possible entry points." Correct. sealing. That's what I talked about, GHI coming and They sealed the common wall, ceiling and floor. They

There are two electrical outlets on that wall. sealed those.

They went upstairs to the second floor and

did the floor and ceiling, once again, with the sealing, once again, with the caulk, and there's electrical outlets on that wall. They sealed those.

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Q.

I'm going to direct your attention to the screen

behind you, if you can see it from where you're sitting. I want to clarify with you a couple of things? THE WITNESS: THE COURT: THE WITNESS: BY MR. FISHER: Q. Okay. You recognize that as a diagram, layout Judge, is it okay if I get up? Sure. Thanks.

of the first floor of your unit? A. Q. Yes. Okay. And when you initially started

complaining to GHI, I believe you testified earlier in your examination with Mr. Szymkowicz, that you smelled smoke on the living room side? A. Q. screen? A. Q. Correct. Directly to the left of the cursor is where Correct, this side. Which was where the cursor is there on the

Mr. Popovic -A. Q. A. Q. Right on the other side of the wall. That's where their unit is in relation to yours? Yes, sir. So prior to them sealing the unit, your

complaints with respect to smoke coming into your unit not

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through an open window; was in relation to predominantly the living room, the living room, and the bedrooms on the second floor that -Give us a drawing of that. you. A. Q. A. Cool. Same thing along this wall. Pull that up for

Over here? Yeah. In particular, in the smaller bedroom

that faces the -- yeah, that faces the service side, smaller bedroom, but -Q. A. not -Q. I wouldn't pay attention to the handwriting at I don't know that that's accurate. The smaller bedroom faces the So this bedroom here? Yeah. Can you hang on a second because that's

the bottom. A.

No, it's not.

service side; not the garden side. Q. A. Q. Right, garden side is on this side? Yeah. Let me clarify with you now. When you were

having problems coming into the bedrooms -A. Q. about? A. Yes, sir. Correct. There are the two bedrooms we were talking

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Q.

That was smoke, you believe, was coming through

Mr. and Mrs. Popovics' unit into your unit not through an open window but through some other way? A. Q. A. Correct, in that front bedroom. Uh-huh. If you happened to be -- there's now a full

closet that goes alongside there, and when I would be going in to grab like a suit or blouse for work or shoes that were low, I could smell it. the floor. Q. And it was based upon those complaints that you It was stronger down by

approached GHI to do something about it? A. Q. Correct. And they were responsive to your contacts to

them initially? A. They came out and sealed. Yeah, they applied I'm

whatever they used, sealant.

I keep saying caulk.

not sure whether it was caulk or some sort of epoxy formulation or something. Q. But let me just kind of run through, kind of, You made a complaint. Let's see. If

the process here.

they came out in July of 1997, you believe you probably made complaints somewhere earlier in the summer, May, June of '97? A. I believe.

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Q.

After receiving these complaints, you spoke to

Ms. Overdurff? A. Q. Yes, sir. They sent out their maintenance staff to take a

look, that right? A. Q. Yes. Are you aware they looked at Mr. Schuman's unit

about the same time? A. I believe there was a follow-up letter that

mentioned both units being sealed. Q. I'll get to that in a moment, but in this

situation, the letter that we referred to a minute ago, Defendant's Exhibit No. 15 -A. Q. Correct. -- speaks specifically about the areas in which,

again, the smoke penetration was believed to be coming into your unit, and I think you just described for us that it was predominantly the bedrooms on the second floor and the living room area on the first floor, is that correct? A. Q. Correct. And when you sent -- GHI came out and did the

investigation, there was some follow up communication with you with respect to that, correct? A. Q. Correct. Okay. And isn't it true that after GHI came out

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and did this sealing of your unit, that it greatly diminished the smoke that you smelled inside of the unit that was not coming in through an open window, for example? A. I would say that it diminished the smoke. There

would be periods of time when we would smell smoke more strongly; like, if the house had been shut for awhile, it was more noticeable. Q. But would you say that there was a distinction, In other words, did

what it was like before they sealed?

them sealing the unit help the problem in terms of what you were experiencing in the bedroom? A. I think that it helped somewhat. Like I said,

when the house would be closed up, you get -- the house would smell like there had been a party there and people had been smoking in the unit. Q. Okay. And I believe you testified to previously

in a hearing in this case, that you did believe that there was an improvement? I think you just agreed with me after

they sealed, there was improvement? A. Q. Yeah. Do you recall that not only did they come out

and seal, but there was actually a hearing process that the Board's committee went through with you and your neighbor, Mr. Schuman?

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A. Q. A. Q.

Correct. The Popovics were involved in that as well? That's true. Do you remember a time in which you actually

went to a meeting in which you were all present and discussed some of these issues with certain members of GHI's committee? A. I think it was the Member Complaints Board or

whatever they are called; I believe Board members, and I think the general manager, Ms. Overdurff was there. not sure. Q. 1997? A. I believe so. It was after a couple of -- I I remember communication coming from her. And that would also have been in the Summer of I'm

want to say, a couple of months after the sealing was done, I think there was some follow up. Q. Ms. Ipolito, let me direct your attention to

Defendant's Exhibit No. 10 in that same notebook in front of you -- excuse me -- correction, Exhibit No. 11. To make sure, May 16th, 1997 letter on top? A. Q. A. Correct, from Keith Jahoda. You remember meeting with Mr. Jahoda? Yeah, he was a member of the Board. I believe

at that time there were, at least, two other members of the Board present.

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Q.

Do you recall receiving this letter from him as

well as the letter behind it? A. Q. Yes, sir. That was attached, and, basically, those two

letters, May 16th, 1997 letter, which is basically a brief letter, Defendant's Exhibit 11, and then the remaining parts of Defendant's Exhibit No. 11, which is behind that is a second letter that was attached, also dated May 16th, 1997? A. Q. A. Correct. Do you recall seeing those letters from Mr. -Yes. MR. FISHER: Your Honor, I ask that Defendant's

Exhibit No. 11 be admitted. MR. SZYMKOWICZ: THE COURT: No objection.

Be admitted.

(Whereupon, Defendant's Exhibit No. 11, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Q. Ms. Ipolito, I, again, refer you to this letter.

I note that the letter is dated May 16th, 1997, Keith Jahoda. A. Q. Yes. Actually, the sealing of your unit took place

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sometime later. of that year. A. it. Q. A. Okay.

I believe it was in August or September Does that sound correct to you?

Yeah, I think it was in the Summer when they did

Actually, isn't it true that their efforts to

seal the unit actually came after they started a process in which they tried to meet with everybody to recognize what the problem was initially? A. I remember a series of meetings. Refresh my

recollection.

Obviously are -- the letters coming from

GHI, but I do recall, I believe it started in the spring and went through, you know, the summer and fall. Q. And this letter specifically, I'll ask you to

take a minute just to review it so you can, maybe, recall some of the events that -A. Q. A. Q. A. Q. Is that -May 16th, 1997. Okay. Defendant's No. 11. 11. Okay. Yes, sir. Thank you

After reviewing that letter, would you

agree that GHI's panel here was making efforts to work with the different members of the cooperative to try to reach a solution to the problem?

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A. Q.

Yes. Do you think their approach, as described in

this letter, at that time was a reasonable approach to try to address the issue based upon the information they had at that time? A. Probably based on the information that they had

at that time and the fact that the concern was it seemed -- the concern was more to keep the odor out. I'm not sure if there was thinking on the issue of the secondhand smoke and, you know, the airborne particles; not just an odor, but there's other things, nicotine, et cetera, coming through. I don't know if they

were thinking that, but in terms of preventing an odor from coming through, yes, I think they were trying to make, you know, as good a job -- do as good a job as they could. Q. These issues you just mentioned in terms of

particles and nicotine, these are issues that came up much later; not until Mr. Repace came up and talked to you and Mr. Tashima (phonetic), correct? A. Q. A. 1997. Q. Ms. Ipolito, as referred to in this letter, it Not exactly. Were those issues discussed in 1997 though? No, they weren't issues that were discussed in

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talks about some process or procedure that would follow in terms of trying to ameliorate the problems; specifically talks about that you had, in fact, in your unit had gotten some air filters that you had installed, and it talked about, as well, that at that point in time, on page one, "GHI maintenance personnel have sealed all of the obvious wall penetrations in the affected units, including the attic," and that it had, in fact, occurred at that point, correct? A. I guess I would take exception to the attic Most

because the attic is kind of a strange structure. attics are.

We have a common ventilation system that I do

not believe can be sealed off because the whole idea of the ventilation system is to keep moisture or mildew out of the attics; keep the attics dry, for lack of a better term. Q. I think they call that a soffit venting system,

but if I can approach you, maybe this can help. Showing you what has been marked as Popovics' Exhibit No. 1, marked for identification earlier today. That is kind of the layout? A. Correct. Correct. Allegedly, the air flow What I'm talking

going through keeps the attic dry.

about, underneath floorboards and such, there is still some open space that was not sealed.

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Q.

At that point in time, had you walked through

the property with GHI's maintenance personnel to identify which areas you thought should be sealed? A. I don't recall. I don't recall doing that. I

believe they did the sealing when I was at work.

We did

what in the co-op we say, we gave them permission to enter, which means they can go into the unit without us being there. Obviously, when we got home, we saw the Plus, they left us a work order that

results of the work.

said where they had done -- I believe where they had done the sealing. Q. And after they did that initial sealing, you

were somewhat satisfied with the results but still not completely satisfied, is that correct? A. Q. Correct. In fact, you had GHI move forward with a more

formal hearing process with their Members Committee? A. Q. I believe so. Refer you to Defendant's Exhibit No. 13, which

is a letter dated June 13th, 1997? A. Q. Correct. Okay. That was a letter addressed to you. Do

you recall receiving that? A. Q. Yes, sir. Also went to your neighbors, Mr. and Mrs.

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Popovic and Mr. Schuman.

This talked about actually

moving forward with the fact of further pursuing the complaints with respect to smoke, correct? A. Q. Correct. So GHI, at this point, was still being

responsive to try to move forward with finding a resolution, correct? A. Right. I believe they were adhering to what is

set up, the member grievance or whatever, the complaint board, how it moves through GHI's system, for lack of a better word. Q. Okay. MR. FISHER: Your Honor, move Defendant's 13. No objection.

MR. SZYMKOWICZ: THE COURT:

It will be admitted.

(Whereupon, Defendant's Exhibit No. 13, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Q. Ms. Ipolito, I'll direct you now again to

Defendant's Exhibit No. 15 to, again, to the August 12th, '97 letter -A. Q. Correct. -- which was previously admitted. Just kind of

followed in line with kind of the process moving forward;

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what was taking place with GHI's hearing panel, correct? A. Q. Yes. Actually, I think this was more specifically in

response -- you had asked, as part of the discussions with GHI personnel, specifically Ms. Overdurff, about what was the make up of the construction of the units in terms of what walls were between your units and that of the Popovics. A. Do you recall that discussion? I do recall that. Like I said, when GHI came

over to do work, I talked to -- with one of the maintenance guys. Q. A. Uh-huh. They said that, you know, Eldon Ralph, who at

that time was the head or the Director of the Physical Plant would be the person to talk to. Q. And in this letter specifically, Defendant's

Exhibit 15, Mr. Ralph concludes with the statement, "Please inform me whether the smoke infiltration problem has been resolved to your satisfaction," correct? A. Q. Correct. They didn't shut the door to you in terms of

listening to what you had to say, correct? A. Q. No. Let me now ask you this: Following receipt of

that correspondence, are you aware that GHI brought in an

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industrial hygienist to actually do some review and testing? A. Q. correct? A. Q. Yes, sir. I think that might have eventually been part of Yes, sir. That was something you were supportive of,

the request and discussions that you and Mr. Schuman had with the Member Complaints Panel. You wanted somebody to

really look at this hard that had some expertise? A. Q. Correct. They brought in this industrial hygienist to

actually do some observations and review what had been done by GHI previously to seal the unit, right? A. Q. Yes, sir. I'm going to direct you now to Exhibit Number -Bear with me. I believe it's Exhibit

let's see here.

No. 24, letter, Greenbelt Homes, Inc., dated November 25th, 1997? A. Q. that time? A. Q. apologies. Well, I'm looking at Defendant's 24. I'm sorry. Go back to Defendant's 23. My Got it. Do you recall receiving that letter from GHI at

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A. Q.

Okay.

Yes, sir.

That was a letter to you and your partner, and

it basically was a follow-up to the efforts GHI was making to review the matter on having an industrial hygienist come out, correct? A. Q. Yes, sir. In fact, if you refer to -MR. FISHER: Your Honor, I move Defendant's

Exhibit 23 into evidence. MR. SZYMKOWICZ: THE COURT: No objection, Your Honor.

It will be admitted.

(Whereupon, Defendant's Exhibit No. 23, previously marked for identification, was admitted into evidence.) BY MR. FISHER: Q. No. 22. MR. SZYMKOWICZ: Your Honor, on 23, though it Now, I'll refer you to Defendant's Exhibit

says, "Attached, please find a copy of the preliminary report," that's not included. MR. FISHER: THE WITNESS: MR. FISHER: That's 22. That 28. Strategic Exhibit.

Twenty-two, that's the Martel report enclosed with the other letter.

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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. Honor.

MR. SZYMKOWICZ:

We are going to object to the There's no expeption

Martel report because it's hearsay. for that. MR. FISHER:

I haven't moved to admit, Your

THE COURT:

Hasn't been moved yet.

Okay.

BY MR. FISHER: Ms. Ipolito, do you recall receiving this letter

from GHI that included this Martel report? A. Q. that time? A. Q. Yes, sir. And did you and your partner read through what Yes, sir. Do you recall reviewing the Martel report at

was included in this Martel report? A. Q. Yes, sir. Okay. And based upon your previous testimony, I

don't believe you disagree that GHI personnel conducted sealing of your unit, correct? A. Q. Correct. Okay. And were you with the representatives

from Martel when they were in your unit doing this? A. Q. No, sir. Are you aware that Martel Lab took carbon

monoxide readings from your unit?

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A. there. units.

That's what they said.

Like I said, I wasn't

I don't think anybody was home at any of the I think it was done during the day while everybody

was at work. Q. correct? A. Q. No, sir. You have no reason to believe that Martel would But you don't know that the testing wasn't done,

have made up a story? A. Q. No, no conspiracy theories, no. After receiving this Martel report in the letter

from GHI about what had been done at that point in time, you were somewhat satisfied in terms of the smoke infiltration into your bedrooms and the living room, weren't you? A. Q. A. Well -Back in '97? Are you talking in terms of after reading

Martel's report and after the sealing? Q. I'm talking about the whole effort by GHI to The fact that you now had a report from

seal the unit.

Martel Labs indicating they had investigated it; not detected any problems, were you more more satisfied at that point than you were before you started the complaint process with GHI?

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A.

I was surprised by the Martel report because

sort of made me feel I'm smelling stuff; that they are not finding anything, and so that troubled me. Q. You indicated earlier, in answer to one of my

questions, that you understood that there's a difference between smell and particles, correct? A. Q. Correct. I'm not going to ask you a question because you I understand that, but you

are not an expert in that.

still smelled -- you smelled smoke on occasions, correct? A. Q. A. Q. Correct. In 1997, you smelled smoke in your unit? Yes, sir. With the windows closed before they sealed the

unit, you did smell smoke? A. Q. Yes, sir. After they sealed the unit, I think you

indicated that you still smelled smoke, but it was a lot less than it was before? A. Q. Correct. After the Martel Lab report was sent to you and

GHI asked you to let them know if you had anymore questions, you didn't contact them following that report, did you? A. No, I didn't.

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Q.

Okay.

In fact, for a long period of time, there

was no written communication from you, at all, to GHI with respect to any complaints about further smoke infiltration into the inside of your unit -A. Q. A. True. True.

-- from Mr. Popovics' unit, correct? True, but the reason for that was, like I said

before, the Martel report, there was something about the Martel report that didn't ring true. Q. A. Q. Did you go out and have your own report done? No, I didn't because -Did you have any other further investigation

done to say that what Martel found was incorrect back in 1997 or even '98? A. No, but what I started doing was my own research

on secondhand smoke, and you know, health implications of secondhand smoke. Q. I started to do research. You said you started to do

Let me ask you this:

your own research, which, again, I think is a reasonable thing to do. Once you did your research, did you go back

to GHI back in late '90's and early 2000 to bring back any information to them to suggest that they needed to do more for you? A. Q. No. Okay. In fact, isn't it true that you didn't go

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back to GHI with any specific requests to do any work until Mr. Schuman approached you again about the problems he was having with smoking? A. I'm not sure about that. There -- I think there

was a series of contacts with Ms. Overdurff about problems with smoke coming into the house, and I'm talking about outside, outside smoke. Q. Okay. Well, let's talk about the outside smoke.

If I'm correct, you indicated that you built a screened-in porch -A. Q. A. Q. A. Q. Okay. -- on your unit. That was in what year?

I want to say it's about six years old. Back 2007, 2008? About that. Okay. And at that time, you knew the Popovics

smoked on the patio, correct? A. Q. A. Q. Correct. And you built the screened-in porch? Correct. After you built the screened-in porch, you would

want to enjoy the porch you just built? A. Q. Sure. So once you started spending some time on that

porch, that's when you went again back to GHI, The smoking

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outside is a problem for me because I can't use my screened-in porch? A. Q. Correct. But prior to that, you hadn't approached GHI or

asked that they reconvene a Member Complaints Panel, did you? A. Q. True. What we are talking about here -- I think this I think I'm

distinction needs to be made clear.

understanding it, but I want to make sure the Court does. The complaints that you had in 2007 and 2008 that you began bringing to GHI had to do with the fact that the Popovics were smoking outside of the unit? A. Q. Correct. Okay. Both outside and inside

So in 2007, 2008, you were complaining,

again, about the smoking inside of their unit? A. Yeah, because I wanted -- to take you back a

little bit in your chronology. Q. A. Uh-huh? We installed ceiling fans in our unit, I want to

say, shortly -- I didn't look at the receipts before I came into Court today, but shortly after the Popovics moved in, because they would smoke outside or they would have get togethers, and their friends would be out there; they would smoke outside, we would shut the windows.

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Okay.

At first when we were in the unit, there was no It was ridiculous. It was like

ceiling fans.

locking yourself up in a closed room; so, we installed ceiling fans not to get rid of the smoke so much as just to move air in an enclosed house. Okay. Yes, it clears

the air of the aroma of smoke, you know, and once the house gets cleared, it's comfortable. Q. So the ceiling fans helped to help with

dispersing the smell of smoke? A. Q. A. Yeah. That's reasonable. Pushes it out the front of the house. Comes in

the back; goes out the front. Q. You also indicated that you closed windows if

they were smoking outside to help the problem? A. Q. Correct. And so when you closed windows, you are doing

that because they are outside smoking, correct? A. Q. Correct. You are concerned about the smoke wafting in

through the windows? A. Q. Absolutely. Okay. But with respect to the concerns about

smoke coming from their unit through the brick wall that is between their two units into your unit, those

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complaints really stopped after -- to GHI after the late '90's? A. Q. A. Correct. That's accurate? Because, like I said earlier, there were only a

couple of times when the smoke -- and it would be usually in the winter when the house was closed up that when I would come home, I would smell smoke. was closed up entirely. In the summer, if you close it up and you are running the air conditioner, you are not going to smell anything still coming in, but you are not going to smell anything. Q. When Mr. Schuman -- are you aware that in Okay. The house

January of 2009, Mr. Schuman sent a letter to GHI raising the issue that smoke was a problem again and needed to be addressed? A. I believe Mr. Schuman gave me me a copy of his

correspondence. Q. No. 44. A. Okay. Hang on a second. Your Honor, for organizational I'm going to direct your attention to Exhibit

MR. SZYMKOWICZ:

purposes, I ask that the Court -- that we use the Plaintiff's Exhibits because we are in the Plaintiff's --

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these are the same exhibits. THE COURT:

It's going to get messy.

It's all right, and we'll cross

reference, maybe, during a break if we need to, but he's welcome to use whatever exhibit he wishes. MR. FISHER: BY MR. FISHER: Q. A. Q. You have the letter in front of you? Yes. And I show, on page two of -- you were copied on Thank you.

this letter? A. Q. A. Q. We were copied, yes. You remember receiving it? Yes, sir. I direct your attention to the second sentence This is Mr. Schuman's

of that first main paragraph there. letter to Ms. Overdurff.

"This matter was brought before the mediation panel several years ago and resolved." A. Q. Yes, sir. You would agree with Mr. Schuman that it went See that sentence?

before the hearing review panel many years before? A. '97 span. Q. Right. You would agree, also, that to some Correct. I'm assuming he's talking about the

extent, it was resolved at that time with respect to the

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issues of what the panel was reviewing? A. I think it's fair to say that on our side of the

wall, which is a totally different wall than Mr. Schuman has -Q. you? A. For us, the issue, I would say, was resolved Right. I'm asking about what you believe for

except for the occasional incursion and outdoor smoking. Q. During that, let's say, span of '98 through

2009, roughly ten, eleven year time period, you didn't vacate your unit because of the annoyance from the smoke next door from the Popovics, did you? A. Q. No, we continued -In fact, you indicate that you closed your

windows when they were smoking outside and it bothered you? A. Yeah, but I think, in a way, we did vacate our

unit because we didn't have full use of the unit. Q. A. Q. Well, you didn't move out, did you? No. Let me ask you this: Okay. So you are living

in a cooperative, cooperative with neighbors on either side? A. Q. Correct. Would you agree not only do you smell smoke from

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cigarettes, but you also smell cooking odors from next door? A. Q. Yes. Earlier in the deposition, I think you said most

cooking odors didn't bother you; in fact, enjoyed garlic sometime? A. Yeah, the wall we have with the Coburns, the

other side, the other side of the house, the more what I would call porous wall where the electric box, you know, plumbing runs through, we smell whatever Myra is cooking right through the wall. Q. Not a problem.

It's something that you experience because you

live in close quarters? A. Q. Exactly. It's like one big house.

And on occasion, you probably hear noise coming

from the Coburns as well -A. Q. A. Q. A. Yes. -- whether you like those noises as well? No comment. Again, that's inconvenience? You know, I wouldn't have bought a house in GHI

if I didn't know I was going to live in a row with a whole bunch of other folks. family home somewhere. Q. And you also understood that in cooperative I would be living in a single

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living, that the -- I guess there's certain tolerances you have to -- whether you like the noise or not? A. Correct. I think we talked about Metallica

versus Ayita. Q. I won't ask which side of the fence you are on

on that one? A. Q. Both. Now, once these issues began, I would say,

resurfacing in 2009, you talked to Mr. Schuman about these things, didn't you? A. Q. Yeah. In fact, Mr. Repace had spoke with Mr. Schuman,

and Mr. Schuman relayed those communications to you, right? A. detail. I would say in generalities; not in a lot of I did probably more listening than talking to

Mr. Schuman. Q. Okay. Did he provide you with large amounts of

Surgeon General Reports and documentation on secondhand smoke? A. He did, but most of the stuff I had seen before.

I think we were sort of moving down the same path. Q. Now, in this case, when was the last time you Sitting here

would say you were in Mr. Schuman's unit? today, when is the last time?

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A. Q. A.

Probably -Ever been in Mr. Schuman's unit to share a meal? Probably yesterday was the last time I was in I drove in last night;

there to find out what time today.

went over Dave's to find out what time I was supposed to be here. Q. And what time were you in Mr. Schuman's unit

yesterday, would you say? A. Q. A. Q. I would say, 6:30 maybe. And was Mr. Popovic home at that time? You know, I didn't notice. Let me ask you this: In living in your unit, I

think you said you got a screened-in porch; you go out there. Was Mr. Popovic out on the patio smoking all hours

of the evening? A. Q. cigarette? A. No, I think -- see, I think the pattern -That thing is heavy. The pattern has changed now that, unfortunately, Mrs. Popovic has become ill. I think they would be out No. He would go out there on occasion to smoke a

there in the evening, you know, enjoy either a cocktail or whatever, socialize, chat about the day's events. Now it

seems that I would say he's out there after he gets home

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for about an hour, hour-and-a-half at the most; so, prior to recent events with Mrs. Popovic's health, it could be for a longer period, a longer period of time. Q. Let me ask you this: You talked about the

pattern of their smoking as you observed it? A. Q. A. Q. Yes, sir. You weren't always watching them smoke? No. And in terms of the pattern, would you agree

with me that their, quote, pattern of smoking in the late '90's was more than what it is today? Let's separate that out. A. Q. Yes. Let's talk about inside their unit. Back in the

late '90's, they were smoking inside the unit? A. Right. Now, because of Mrs. Popovic's health,

there's no smoking in their unit. Q. In fact, there hasn't been any smoking inside

that unit for some time? A. Q. Correct. With respect to the smoking outdoors, let's Would you agree with me that the smoking

focus on that.

in the late 90's was more constant than it is now? A. Q. Yes. Both with respect to quantity and in terms of

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how often they were out there? A. Well, I think being outside was pretty much in Like I said before,

terms of it being like every night.

with the health issues that Mrs. Popovic has, we don't have two smokers out there. for a longer period of time. Q. A. Q. one? A. Q. It's only one smoker rather than two. Would you also agree with me that Mr. Popovic, So it's less than it was? Yes. Certainly less than it was because it's only We don't have folks out there

based on your observations, is actually out there smoking less cigarettes today than he was in the late '90's? A. You know, I don't count the cigarettes; I mean,

you know, I don't watch him because he's in his backyard trying to enjoy his backyard, but I just go by the amount of time. Q. You understand there is no rule in GHI's

handbook that says you can't smoke inside your unit? A. Correct, other than the nuisance clause, the

nuisance clause in the Mutual Ownership Contract. Q. Nuisance clause doesn't specifically say

anything about smoking, does it? A. Correct.

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Q.

Let me ask you another question with respect to In your unit, you are allowed not to There's no rule that says you can't not Double negative. Right?

the rules at GHI. smoke, correct?

smoke in your unit? A.

I thought the double negative meant I could

smoke if I wanted to smoke. Q. A. Q. That's true too? Yeah, exactly. With respect to outside of the unit, there's no

rule that says that you cannot smoke on your patio? A. Q. Correct. In fact, at one point in time, you actually, I

believe, looked -- started to look into whether or not there could be something done to stop the Popovics smoking outside their unit? A. Correct. I think that was for us, it was the

issue that came up later once the other issue seemed to be resolved. It was like, okay, we have got one part

resolved; let's work on the next part. Q. A. Q. Which was the outdoor issue? Correct. With respect to the outdoor issue, am I correct

that you learned that if you wanted or other owners wanted a rule adopted to stop people from smoking on their patios, that the membership would have to present a vote

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on that issue.

Do you remember that? Your Honor, I object to that.

MR. SZYMKOWICZ: It's not an issue.

Of course, you can go through this

process with going to the Board, but you don't have to. MR. FISHER: Your Honor, this is a question of

Ms. Ipolito's understanding of what the process would allow her to do if she wanted to. THE COURT: I'll allow a little bit. I suppose

it could go two ways, bias issue. THE WITNESS: Sorry, Your Honor. I didn't

understand that, but this is going to sound crazy, I'm sure, but I wasn't really -- like I'm not a crusader. I

was more concerned about my situation and the fact that it seemed to me that Mr. Popovic could enjoy his backyard, you know, pretty much have free reign. It's not like when

he was out there smoking, I would hop the fence and say, stop smoking. that. Q. A. You didn't spray a hose on him? No, I didn't spray a hose on him nor did I go You are killing me over here. I didn't do

out in the backyard and burn tires in response. I guess what I was looking for was some common ground where I could use my property; enjoy the full value because I believe that my property has diminished in value. It's diminished in value to me because I can't use

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it fully. Q. You are upset at times you have to go inside

when you would like to be outside? A. Q. Yeah. I understand that. It's reasonable for

Mr. Popovic to want to be in his backyard, correct? A. Q. Absolutely. Ms. Ipolito, to this day, though, GHI has not

adopted a rule to prohibit smoking outside? A. Q. Not yet. Not yet. With respect to what has happened on

your patio, smoking, people have smoked on your patio outside? A. Q. it was? A. Who sat in the corner of the patio on a windless Blew smoke away from One time. One time.

So individuals, visitors to your unit, I believe

day and did this (indicating). people. Q. A. And that was allowed? Yeah. MR. FISHER: Honor. THE COURT:

I have no further questions, Your

Mr Popovic. CROSS-EXAMINATION

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BY MR. POPOVIC: Let me see. Remember that I already asked you;

you said that your guests were smoking but blowing the smoke in the other direction; not into your face? A. Q. Yes, sir. And do you remember that I asked you, Did I ever

blow smoke into your face? A. No, we are never that close; I mean, we are

never like face-to-face. Q. Yeah. And I asked you if your guests smoking

was bad for your asthma? A. Q. A. Q. A. Q. Yes. What did you say? I said, Yes. Why they didn't blow smoke into your face? I'm sorry; I didn't catch that? Why it was bad for your asthma when they blew

smoke into the other direction? A. If I can explain to you how we were seated. That's kind of I

was seated at the end of the porch.

closest to your side, and Arlene was sitting, basically, in the corner, and I wasn't getting smoke in my face. knew she was smoking. I could see her. I

I could smell it,

but it wasn't like wafting in and hitting me in the face. Q. Yeah, I understand they were smoking in your

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yard. A. Normally, Arlene would go out to the common area

behind the houses. Q. A. Yeah. She would go out there and smoke, but she ended

up stopping, so. Q. A. Did I ever smoke in your yard? No, sir, other than your smoke coming over, but,

no, you didn't stand in my backyard. Q. So my smoke from my yard is coming to your yard,

and your guests smoking in your yard is okay? A. I didn't say it was a great thing to have in my My door

backyard, but it wasn't hitting me in the face. was closed, and my windows were closed.

It was pretty

much treated the way that we treat it when you are out in the backyard smoking. Q. Ms. Ipolito, have you ever noticed who is your

next-door neighbor on the other side of the Coburns? A. Q. Yeah. Yeah.

Have you noticed that they permit smoking in Have you ever seen somebody smoking in their

their yard? yard? A. Q. A.

No, sir. You never saw me smoking there? No. I guess --

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Q. A.

You never saw me and Myra's son-in-law smoking? Her son-in-law, but that's a long time ago, and Bott's (phonetic) husband you are

I saw her son-in-law. talking about? Q. A. Yeah.

He would stand, I think, at the end of the I never saw him smoke in the backyard

property outside.

because when James was alive, he didn't want any smoking. Q. You never seen me sitting in their yard having

dinner and smoking? A. Q. A. No, sir. When Jim is present? No, I haven't because if I smell smoke, I just

shut the windows. Q. You didn't complain to Myra because of her

son-in-law's smoking? A. It wasn't every day. It was -- you know, I

can't think of his name, but the last time he was there and smoked, it has to be years ago. Q. Yeah. Okay. Okay. Thank you.

MR. POPOVIC:

REDIRECT EXAMINATION BY MR. SZYMKOWICZ: Q. A. James Coburn is dead, isn't he? Yes.

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Q. A. Q. A.

Was he a smoker? Yes. Do you know how he died? Lung cancer. MR. FISHER: Objection.

BY MR. SZYMKOWICZ: Q. A. Q. A. Q. What did he die of? Lung cancer. Do you know if he ever smoked? Never smoked. Mr. Fisher took you through a bunch of questions Seems like you guys were

about what happened in 1997.

fighting this pretty hard, this issue, and then it just kind of stopped. the Martel report. Do you know how the Martel report was done? there a warning given to the Popovics before the test? A. I don't know. All I know about the Martel Was One of the things it was based upon was

report, I was surprised when they found, basically, nothing. Q. A. Zero? Zero, yeah. Sort of makes you think you are

acting crazy. Q. result? You believe that result was not a possible

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A.

Knowing what I now know, I know that's an That was impossible unless

absolutely ridiculous result.

the Popovics had, like, left their apartment, you know, for months and no one smoked in there. impossible. Q. That was

In my mind, it was impossible.

What's the reason that you just kind of stopped

your complaining in the late '90's and then never came back, really, until now? A. I think -- well, I know I grew frustrated. I

grew frustrated with the cooperative and kind of frustrated with myself because I saw that it was a bigger issue, and that I wasn't approaching it the right way. Q. A. What does that mean? The issue of smoking has been dealt with in the 25 Hamilton Place is a smoke-free building.

cooperative.

That's the headquarters for GHI, and yet GHI, as a cooperative, as a Board, as an entity, has not even approached the issue. I'm not necessarily sure that the membership -well, I guess they are now going to take a look at the issue, but I don't think it ever should have gotten to Upper Marlboro. Q. A. of it. Should have been settled in Greenbelt.

Who had the ability to settle it? I think the co-op did, and I think that's part I just got tired of making phone calls and

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accepting e-mails.

I'm sure Ms. Overdurff was probably

tired of seeing the e-mails and getting phone calls. Q. Why didn't you take it to the next level, which

presumably would be here in Upper Marlboro to Court? A. At the time -- well, one, I think I have said I was a weasel, and I didn't do it, and the

this before.

other thing was that I was an active litigator in the State's Attorney's Office, and there's only so much that I can do. Q. A. Mr. Fisher asked why you never moved out? I love my house. I love my house. I love GHI. We are a

I mean, I get it.

It's we are a community.

cooperative, but there just seems to be a lack of cooperation. Mr. Popovic, I mean, did take a big step. not smoking in the house, but he's not smoking in the house because of his wife's health issue. I guess my question is what about my health issues? What about Mr. Schuman's health issues? And I I He's

understand that it's an addiction and everything else. had a couple of uncles, old time Navy guys, that smoked Camels like fiends. They both died of lung cancer. It wasn't pretty. I

watched them both die. Q.

What would be the result that you would like to

see have happen here?

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A.

Well -MR. FISHER: THE COURT: Objection, Your Honor. Sustained.

BY MR. SZYMKOWICZ: Q. What would you have liked to see happen with the

Members Complaint Panel? A. That we reach some reasonable accommodation. Why can't we have like a We

have dog parks in Greenbelt.

smokers' park or designate a space within the court that could be set up. I don't want Darko out there in the dead

of winter like eight feet of snow like smoking, but some sort of reasonable accommodation so he can still be outside and smoke. Q. Do you believe that that's something that the

cooperative could have found a resolution through the Members Complaint Panel? A. You know, I'm not sure. I don't know whether

that could have happened or whether it would have been something that, maybe, me as a member of the co-op should have brought up. parks. You know, like I said, there's dog

I hate to call it smokers' parks; put it on the

same level, but you know, there's a way to accommodate, I think, everybody. Q. A. You referred to Metallica and Ayita again? Yes.

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Q. smoking?

Can you explain that analogy between noise and

MR. FISHER: THE COURT:

Objection, Your Honor. Sustained.

BY MR. SZYMKOWICZ: Q. A. Why did you bring up Metallica? The reason I brought up Metallica is probably

even at 3:00 o'clock in the afternoon, that would be considered a nuisance by somebody that didn't like heavy metal, let alone at 11:00 o'clock at night. MR. FISHER: THE COURT: Objection, Your Honor. That's all right. I don't have any more

MR. SZYMKOWICZ: questions. THE COURT: MR. FISHER:

Recross. Just briefly, Your Honor.

RECROSS-EXAMINATION BY MR. FISHER: Q. clear. Ms. Ipolito, I think you said it. I want to be

Some of the things you just talked about in terms

of what the Members Complaint Panel could have considered, you never brought those up or suggested those, did you? A. Q. A. No. Never suggested a smoking section in GHI? No, I just sort of came up with that the other

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night.

When I was down at the beach, my partner and I,

Barbara and I were talking about, you know, we have dog parks where these dogs can live in GHI that are cooped up all day long, can run and associate with their pals. can't we have a designated space? I work part time at Wegmans. What Wegmans did Why

to solve the problem with smoking, because people were smoking on the receiving deck; it was coming back into the store, into the back of the store, they set up an area. You know the areas where you park your grocery carts, those little huts? They set up a hut; put a picnic table,

and people can go out, if they choose, to smoke while they are working. They are far enough away from the building,

there's no blow back. I guess I'm more creative now that I have been freed up from my day job. Q. Maybe that's something you can suggest to GHI's

membership in the future. Let me ask you a question. You indicated, in

response to Mr. Schuman's questions about your dealings with the Members Complaints Panel just a minute ago, they were never hostile toward you in any way at any of those meetings? A. I wouldn't characterize it as hostile. There

were some smokers that were members of the panel, and they

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got a little edgy, but I understand that because I think a lot of smokers take this as a personal attack. isn't. Q. A. Q. were they? A. Q. No, not that I recall. You don't believe there's any motive on behalf It really

It's a health issue; not a personal attack. They weren't malicious to you? No, no, no. They weren't malicious to Mr. Schuman, at all,

of anyone from GHI to cause you injury, though, do you? That's not their intent here in how they process this? A. No, I think there's -- like I said, I don't I think what they are Probably have a

believe in conspiracy theories.

presented with is a very difficult issue. lot of folks in the outfit that smoke. folks that don't smoke.

They have a lot of

Would like to see the co-op go

smoke free if possible, but I don't think -- you know, I think it's a tough issue to them to deal with. dealt with it at their own headquarters. They have

For them to deal

with it in all of GHI, I think that's something -- it's coming, but I don't think they're willing to take it yet. Q. A. It's a difficult issue? Absolutely. MR. FISHER: THE COURT: Absolutely. No other questions. Mr. Popovic.

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MR. POPOVIC: THE COURT:

No, Your Honor. Any Redirect based on that? No, Your Honor.

MR. SZYMKOWICZ: THE COURT: THE WITNESS: THE COURT: THE WITNESS: THE COURT: THE WITNESS: THE COURT: THE WITNESS:

You fully retired? Yes, sir. You teaching? Yes, sir. You take the online course? Yes, sir, it was awful. That's what I hear. Thank you, Your Honor. I believe that Ms. Ipolito

MR. SZYMKOWICZ:

wants to go back to the beach, so we can excuse her. THE COURT: Drive carefully.

(Off the record discussion ensued.) THE COURT: Next.

(Witness sworn.) THE DEPUTY CLERK: Thank you. You may be

Please state your first and last name, and spell them for the record. THE WITNESS: S-C-H-U-M-A-N. DAVID SCHUMAN, a witness produced on call of the Plaintiff, having first David Schuman, D-A-V-I-D,

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been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. SZYMKOWICZ: Q. A. Q. A. Mr. Schuman, where do you live? 11Q Ridge Road in Greenbelt, Maryland. How long have you lived there? I moved in June of 1995. I bought my place in

December 1995. Q. A. roof. Q. A. What kind of house? It is a brick row house, townhouse with slate I think there are eight units in a row. Can you describe the outside of your house? Yeah. The outside is brick exterior. Three

different models of houses in GHI:

the vinyl siding,

intermediate level would be the block type houses, and then the brick end units would be the higher end. MR. SZYMKOWICZ: exhibits? BY MR. SZYMKOWICZ: Q. Can you show the Court the two photographs and May I approach to get the

describe for the Court where your units are? A. Sure. Plaintiff's Exhibit No. 1, eight by ten

color photo; shows on the left Mr. Popovic's unit and on the right, my unit that is the garden side on the property. That was built in the 1930's. The garden side

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was considered the front or formal side of the cooperative. Plaintiff's Exhibit No. 2, eight by ten color photograph, is the photograph of the service side where the utilities are taken care of; the trash pickup occurs; what some people use as the front of the house, but, you know, it's different from the way it was set up in the 1930's. Q. So in today's culture, you park your car in

front of the, quote, service side, and you go to what you would consider to be your front door would be the service side? A. Q. A. Q. That's correct. And that would be Exhibit 2? That's correct. Can you show where your house is in relation to

Mr. Popovic's? A. left. Sure. In Exhibit No. 2, my unit, 11Q, is on the

There's an address symbol there, and Mr. Popovic is

on the right. Q. Is your house part of any cooperative or

condominium? A. Yes. It's part of the cooperative, Greenbelt

Homes, Inc. Q. Tell me about the history of GHI?

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A.

GHI has been referred to as a wonderful place.

It's the first planned community in the United States with individual pathways built for the school children not having to cross a major road. All the major facilities

are in the center of town; very walkable community; live in close proximity to our neighbors. wonderful place to live. Q. A. Why did you move there? It is close to my place of employment. It was It's, in general, a

very affordable at the time. development. Q. A. Where do you work?

I admired the history of the

I work at Nassau about ten minutes away by car;

on occasion, if I walk, about forty minutes. Q. A. Q. What do you do? I'm a lawyer for NASA. Are there any contracts that bind GHI residents

to each other in a contractual relationship? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. Go ahead. We all signed what is called a

Mutual Ownership Contract, which outlines the rights and responsibilities between the member and cooperative, bylaws of the cooperative. Of course, there's a Member

Handbook, quite extensive, with the rules of the

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community. Q. No. 20. A. I'm showing you what has been marked as Exhibit Can you tell me what that is? Looks like Plaintiff's Exhibit 20 is a copy of

my Mutual Ownership Contract. MR. SZYMKOWICZ: Your Honor, move the admission

of Exhibit 20 into evidence. THE COURT: MR. FISHER: THE COURT: Any objection to No. 20? No objection, Your Honor. It will be admitted.

(Plaintiff's Exhibit No. 20, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: Q. No. 21. A. I'm showing you what has been marked Exhibit Can you tell me what that is? Looks to be a copy of the Mutual Ownership

Contract of Mr. and Mrs. Popovic. MR. SZYMKOWICZ: evidence as Exhibit No. 21. THE COURT: MR. FISHER: Any objection to 21? Your Honor, while I don't believe Your Honor, I move this into

Mr. Schuman, himself, is the proper foundation to the documents, I know Mr. Popovic is going to testify later. There's no objection. THE COURT: I'll admit.

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(Plaintiff's Exhibit No. 21, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: Showing you what has been marked as Exhibit No. Can you tell me what that document

19 for identification. is? A.

It's not dated.

Looks like a letter GHI

provides new members; may have been the same one presented to me when I joined and Mr. Popovic when he joined. Q. pages? A. Looks like a description of the rules for What's behind the letter? What are the next

members of the cooperative, Part 1 Member Information talks about the history and structure of GHI. Beyond that, it talks about the member complaints procedure, section XVII. Q. Are -- these pages constitute what you refer to

as the Members Handbook? A. They are certainly from the Members Handbook.

The Members Handbook is bigger; has a lot of other subjects, but, sure. Q. today? A. I don't think so. MR. SZYMKOWICZ: Your Honor, I move Exhibit No. And the other subjects wouldn't be relevant here

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19 into evidence. THE COURT: MR. FISHER: THE COURT: Any objection to Nineteen? No objection, Your Honor. It will be admitted.

(Plaintiff's Exhibit No. 19, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: Do you believe that GHI

residents are required to abide by the terms contained in the Mutual Ownership Contract? A. Q. A. I do. Why is that? Document is written as a contract. MR. FISHER: Objection, Your Honor. Not

testifying as an expert, Your Honor, to interpret what the legal. MR. SZYMKOWICZ: THE COURT: THE WITNESS: again, please. BY MR. SZYMKOWICZ: Q. Are you required, as a member of GHI, to abide He's a contracting party. Go ahead.

Yeah, it's a contract.

I'm sorry; could you ask that

by the contract terms and conditions as stated in the Mutual Ownership Contract? A. Q. I am. I direct your attention to page one, Background

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section, paragraph e. THE COURT:

Can you tell me what this states? What exhibit? Exhibit No. 20.

MR. SZYMKOWICZ: THE WITNESS:

Section E states, "This Contract

establishes the rights and responsiblities of GHI and Member in connection with Perpetual Use and the Premises in addition to those rights and responsibilities established by Maryland law." Q. A. What does that mean to you? It indicates to me this is a binding contractual

agreement that lays out what the member is supposed to do as a member of GHI and what the cooperative is supposed to do as to management as the landlord in this case. Q. Speaking of landlord, I direct your attention to If

Exhibit No. 20, the Background section, paragraph d. you can read that; explain what that means to you. A.

Section d states explicitly, "Under Maryland

law, this contract creates a legal relationship between GHI and Member as that of landlord and tenant." Q. A. What does that mean to you? Similar to tenant in an apartment building, GHI They have certain responsibilities to

is in charge here. take care of: wrong.

Maintaining the property if major things go

They are in charge of repairs to the structure. Member has certain responsibilities inside the

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unit. Both sides have certain obligations that they have to follow in this framework. It is different, very

much so, than owning a single-family house, which I have come to appreciate over time, and it provides a framework for working with other members and the management of the cooperative to resolve disputes. That's very much why I

followed all the rules of the cooperative. Q. I direct your attention to Exhibit No. 19, the

Member Handbook, and specifically page -- the page that is numbered page two, third page in. A. Q. I see it. It states, "The Mutual Ownership Contract is a

contractual agreement between the member and the corporation, which establishes the rights and obligations of both. This contract is the legal framework within

which each member occupies and enjoys a particular residence for which title is legally held by Greenbelt Homes, Inc. It sets forth the services members can expect

from GHI and the policies which the member must observe while occupying a GHI home." What does that mean, that paragraph mean to you? A. Again, just to finish that paragraph, "All

members should carefully read their Mutual Ownership Contract to understand its terms and the responsibilities

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of all parties." Like I have been saying, this lays out the obligations of each side under the cooperative framework. I don't own my unit, per se. I own shares in the

corporation; the right of perpetual use of the unit under good behavior as do other members of the cooperative. Q. I direct your attention to Exhibit No. 20.

That's your Mutual Ownership Contract, and specifically page three under the section Perpetual Use and Occupancy, subparagraph d, Authorized Use of Premises. A. Q. I see it. Can you read this paragraph aloud and explain

what you believe that this means? A. Sure. There's just a couple of sentences of "Authorized Use of the

introduction before the main part. Premises:

Member and each person named on the occupant

list filed with GHI, shall use the Premises and common property and facilities in conformance with the terms of this Contract, the Bylaws and the Rules. Use of the

premises or any part the premises for any purpose contrary to the interests of GHI or its members as determined by GHI or contrary to law is not authorized. duty -- This is the important part. It shall be the

It shall be the duty

of member to respect the comfort and peace of mind of neighbors as well as of all members and tenants of GHI."

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-- "Tenants," I focus on again under this landlord tenant framework. -- tenants of GHI "not to engage in conduct

that is objectionable conduct and to ensure that all persons occupying or visiting in the premises so act. Member agrees not to do or allow to be done or keep or allow to be kept on the premises anything that will increase the rate of insurance on the premises." I'm sorry; just cut off on the bottom on this copy. I'll start that again. "Member agrees not to do or allow to be done or keep or allow to be kept upon the premises anything that will increase the rate of insurance on the premises or do or allow to be done any act or thing that shall or may be a nuisance, annoyance, inconvenience or damage to GHI or its members or tenants or to occupants of djoining dwellings or of the neighborhood." Q. A. What does that section mean to you? It means members should exercise common The

courtesy; that every one can live comfortably in the community; means one neighbor can't create a nuisance for another neighbor. If that condition does exist, the -- if

that condition does exist, the cooperative is obligated to take steps to make sure it does not exist, and in fact, that is what the cooperative does for all the nuisances. Q. You are a member of the State Bar, correct?

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A. Q. A. Q. A. Q. nuisance? A.

I am. And what state is that? Actually, it's District of Columbia now. And you are not a member of the Maryland Bar? I'm not. Are you familiar with Maryland common-law and

I am in a general sense.

I'm not an expert on

that subject, although I have learned a bit over the past couple of years. Q. A. Q. That's more from being in this process, correct? Yes. Do you believe that the contract provides you

greater rights other than if you lived in a single-family home; not in a community? A. I do. MR. FISHER: THE COURT: next question. BY MR. SZYMKOWICZ: Q. Do you believe that the contract between you and Objection. Objection sustained. Wait for the

the cooperative affords you greater protections than if you lived in a single-family home; not in a cooperative community? MR. FISHER: Objection.

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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. A.

THE COURT:

Go ahead.

BY MR. SZYMKOWICZ: How? I do very firmly because the binding documents

of my cooperative lay out a procedure for the resolution of complaints; such as in this situation, I would not have involved any other party, other than my neighbor, Mr. Popovic, if we lived in a single-family home. Here

the administrative procedure is very well established administratively for resolving disputes. bent over backward to follow to the T. Q. Do you believe you have a lower threshold? MR. FISHER: THE COURT: Objection. I haven't heard the question. I This procedure I

haven't heard the question. BY MR. SZYMKOWICZ: Do you believe that you have a lower threshold

to meet in order to establish a violation of the Mutual Ownership Contract as opposed to if you lived in a single family home not covered by such a contract? A. I do. MR. FISHER: Objection, Your Honor. Asking for

a -- legal conclusions and legal interpretations, Your Honor. He's also leading the witness. THE COURT: But the question is: Do you believe

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and not that he's asking for a legal opinion. him answer. THE WITNESS:

I'll let

I do, and the reason is nuisance

is very specifically defined in this Mutual Ownership Contract. It doesn't refer to usage just generally. It

says "nuisance"; then it goes on to define what the nuisance is in GHI under this clause. Q. A. What is that? Anything that causes annoyance, inconvenience,

increases the rate of insurance on the property; is objectionable conduct to a neighbor. Q. Do you believe the Popovics have entered into a

mutual contract with GHI? A. Q. A. Q. Yes, I do. That's undisputed? Yes. Everybody lives in GHI is a, quote, member; has

also signed a contract -A. Q. A. Q. A. That's correct. -- with GHI? That's correct. Who are the Popovics? The Popovics are my next-door neighbors on one They moved in shortly after I moved in; Mr. and Mrs. Popovic are

side of my unit.

I guess about a year later.

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generally nice people. neighbors.

I have nothing against them as

I just have a very specific problem that I

need to get resolved and haven't been able to get resolution through the cooperative. Q. A. Q. So you lived there first, correct? Yes, I did. Not that it matters legally, but you did live

there first? A. Q. I did. Did you have any problems with secondhand smoke

before the Popovics moved in? A. Q. No, I didn't. Can you describe the wall that separates your

home and the Popovic home? A. Couple of witnesses have referred to, throughout

the proceedings, the units are separated by two different kinds of walls. I think that was done for fire purposes When the units were built, every From what I

and perhaps efficiency.

two units, there's a solid wall between them. can see, it's brick. besides the brick.

There may be some other material Every other unit, in other words, in

between the two units, there is what has been referred to as a hollow wall; not that much of a wall at all; I think, in general, drywall over one by six plywood, chicken wire. You can see through to the other unit when the medicine

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cabinet is out.

It's not a a solid wall in any respect. It's

Utilities run up and down between the two units.

very different from the brick wall that separates every two units. Q. A. Q. A. Do you have an attic? I do. Do you have a -- do the Popovics have an attic? It's more or less a shared attic, has been

referred to, and I should try to clarify this very specific point. There are dividing walls between the

individual units, and I think one of the exhibits showed that. Q. A. Q. Can I show you the Popovic Exhibit No. 1? Sure. Can you explain to the Court if you think it

will help explaining? A. unit. Sure. This is similar to the attic space in my

One side is the brick sidewall that I described.

Other side is I'll call the plywood dividing wall, but this really misses the whole point. upset listening to this testimony. This is why I'm so There's a continuous

space on the floor that runs the length of the whole row between all of the eight units. And it's similar

underneath the units in the crawl space; so, all this talk about sealing the attic or sealing these dividing walls

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misses the point completely. between units.

There is constant air flow

There is always going to be constant air

flow between the units under the floorboards, in the attic and through the crawl spaces; impossible, from what I have learned in talking to Mr. Repace, to even attempt to, quote, seal the units. I get so mad sitting here listening to all of that; you can just seal all of these leaks and cracks and the problem will go away; from everything I have been able to learn is absolutely not true. I admire attempts to try to do that. I think

parties were working in good faith initially because we thought that might help. I have come to learn it's not

possible if you want to try to do it. Q. A. Why not? Because the units were built to have air flow If you try to make them hermetically I

between them.

sealed, you would suffocate in any multi-family unit. have read some articles on this. MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. Sustained.

I have since come to understand

there's going to be air flows. MR. FISHER: THE COURT: Objection, Your Honor. He can see where the air flow is.

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He can testify to that. MR. FISHER: articles. THE COURT: THE WITNESS: Just what you have observed. There's going to be air flow It's not possible, under any What he has come to learn from

between the units in GHI.

circumstance, with any method, to completely seal. MR. FISHER: expert testimony. THE COURT: Yeah, I'll sustain that. Objection, he's now trying to give

BY MR. SZYMKOWICZ: Q. I direct your attention to the Court's Order in On page seven

last year's preliminary injunction hearing. of that order, the Court states,

"Various efforts at what

the Court will call spot sealing over the years have only been marginally effective, at best. Left unaddressed is

the possibility of removing the existing plaster or Sheetrock wall, installing a complete plastic-sheet barrier and reinstalling the Sheetrock." Did you ever consider such a resolution to this problem by doing this? A. I sure didn't because it's not going to be

completely effective from what I have learned. MR. FISHER: THE WITNESS: Objection, Your Honor. Very much a misconception you can

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do that. THE COURT: THE WITNESS: do it. BY MR. SZYMKOWICZ: Q. Did you ever investigate how much it would cost I'll allow it. Huge expense involved in trying to

to do this? A. Q. A. I didn't. Again, I spent --

That is, until Mr. Gervasi testified today? I didn't investigate that. It was very much

hard for me to do the renovations to my unit with the budget I had. That was what I had a budget for. I didn't

plan to try to hermetically seal my unit nor is it possible. Q. How much did you spend on your renovations with

Mr. Gervasi? A. I think about $65,000 total. I resent the implication -MR. FISHER: THE COURT: Objection, no question. No question.

BY MR. SZYMKOWICZ: Q. A. Q. A. Do you have a patio outside your house? I do. Do you know if Mr. Popovic has a patio? Yes, he does.

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Q. A. porch. Q.

And Ms. Ipolito has a patio? She does. She has enclosed that with a screen

Showing the Court the pictures from the garden

side; I think it's Exhibit No. 1, can you describe where your patios are? A. Sure. On the left eight by ten photo is On the right is my patio.

Mr. Popovic's patio. Q.

And how far is it between the closest point on

the Popovic patio to the closest window in your house? A. I have that figure exactly somewhere, but off It looks

the top of my head, I'm just going to estimate. like it's about twelve or 15 feet.

I know we did measure

that very specifically for Mr. Repace. Q. A. Q. A. Mr. Repace has those measurements? Should be in his report. Why did you decide to renovate your house? I love my house. I wanted to stay there. It

was built in 1937.

It had some of the original fixtures,

which were nice art deco construction; difficult to live with. It was, some people would say, dated. I wanted to make it look nice. I wanted to I wanted to

update it.

have an open kitchen and dining area, and it looks wonderful now. I'm very happy with it. I don't think I

would have continued to stay there after thirteen or 14

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years unless I had renovated the unit, which many people in the cooperative have done, making modifications like mine and more. Q. Why did you choose Frank Gervasi to do the

construction work? A. I spent a good bit of time investigating I was only going to do this once. I

contractors in GHI.

wanted to do it right; wanted to do a good job. very expensive. He was the most expensive of the

Frank was

contractors I talked to. residents. work.

I talked to many different He did good

They all said he was the best.

Some said he did wonderful work; they couldn't Knowing it was a once-in-a-lifetime

afford to use him.

job, I thought it was best to pay a little bit more than trying to do a job and trying to fix it later. Q. A. Q. Did he do a good job? He did an excellent job. Were you involved in the building permit process

with GHI and the County and the City of Greenbelt that he testified to earlier? A. I was not other than I think I may have signed

something for Frank giving him authorization to obtain all those permits. As a courtesy to the members, rather than having the member go through each of these steps, he takes

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control of that whole process.

I didn't really see them

until they were, I think, completed and signed. Q. Did you ever discuss the issue -- issue of

secondhand smoke with Frank before he started doing the work? A. Q. A. I did many times. What did you tell him? I was very explicit that, look, as long as I'm

doing this renovation, there's one thing I really need to take care of and address; namely: It was a bit embarrassing. this was a smoking project. renovation project. I thought Frank, as the main contractor, should know and do whatever he could to help minimize the problem. I talked to him orally several times. I wrote the neighbors' smoke.

I didn't want to make it seem It's not. It was a

handwritten notes to him.

I think he understood, and he

tried to deal with that to help solve the problem. Q. And did you follow his construction as it was

going along? A. Q. In general, yeah, sure. And did you watch as he or his people were

sealing the unit? A. I didn't. I was away, I think, for at least two Again, this makes me a little

weeks out of that period.

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upset hearing this watching Frank seal because, again, Frank wasn't hired to, quote, seal the unit, and as I have since understood, he can't seal the unit nor can GHI seal the unit, and what has been referred to as GHI's attempt previously to seal the unit I now know is not physically possible. MR. FISHER: THE COURT: Objection, Your Honor. Sustained.

BY MR. SZYMKOWICZ: Q. A. Do you know if Frank did any sealing? Sure. He attempted to caulk, I think, around

the baseboards, but he told me, after I discussed this issue with him in detail there, that he left it in much better shape than the way he found it. MR. FISHER: strike. Objection, Your Honor. Mr. Gervasi already Move to

Hearsay testimony.

testified.

I don't believe he testified to anything of

that nature. THE COURT: Sustained.

BY MR. SZYMKOWICZ: Q. Do you believe that Mr. Gervasi left the unit in

a better condition than he found it? A. I do, and I know that to be true for a fact

because we have talked very specifically about replacing the baseboards with paneling; talked about changing vent

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space between the two units.

We talked about dealing

with -- dealing with moving the junction box; hanging cabinets. GHI came in, at one point, to inspect the plumbing. We had to get a special permit for that. This

is what really bothers me is that they looked at this job before, during, multiple times, and after; never had any objection to it, and they signed off on every step of the process, including when it was done, and said, it's absolutely fine, and now they are saying, well, no, you broke -MR. FISHER: GHI is saying. THE COURT: Sustained. Objection, speculating as to what

I think it's probably time to take a midafternoon recess, about five, ten minutes. break. (Recess.) MR. FISHER: Before we continue, been discussion Need a

as to how long we are going to sit today? THE COURT: MR. FISHER: 4:30, quarter to 5:00. That's fine. I'm just going to

release some of my witnesses. DIRECT EXAMINATION (Continued) BY MR. SZYMKOWICZ:

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Q. Popovics? A. Q. A.

Ever come a time when you had a dispute with the

Yes. First time? Yes, although I don't consider that to be

relevant to this case, sure. Q. Tell me what happened that first led you to have

a dispute with the Popovics? A. Well, the Popovics moved in shortly after I

bought my place, and Dory and I both noticed the smoking problem, and we tried very carefully to work it out with the Popovics in a polite way; then we went through the complaint process with GHI, which is a little bit different than the process that was used this time currently. Q. Did you talk it over with the Popovics without

GHI involvement before you went to GHI? A. Q. A. Of course. What happened when you did that? Of course. And I think there was some

indications that they would try to work this out, and it wasn't worked out, and we sent a series of letters, and we wound up in front of the complaints process with the cooperative. Q. What happened during this complaints process?

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A.

Dory and I both -- with the complaints

processes, as I referred to many times, we went to what I would called a formal hearing. There was Counsel present

for GHI there; participation by Svetlana Popovic; Dory participated; I participated; everybody in the same room. It was a hearing. It's different than the Member

Complaints Panel process that I went through this time. I understand that the formal hearing is supposed to come on behalf of the Member Complaints Panel, which is something I very much wanted to do, and the co-op wouldn't let me. Q. So going back to the 1990's situation, tell me

what -- every step of what you went through when you first made your complaint? A. Sure. It's a long time ago now, but we had this

meeting with the cooperative; I think there had some -some references to GHI hiring a contractor to sample the air quality, which Dory referred to; which I think is just absolutely ridiculous as well, to be frank, because the report came back with reads of zero point zero for carbon monoxide. This is after the cooperative or the firm

notified everybody when the testing was going to take place. I wasn't there when the testing took place, but it

was obviously not correct because we both have this problem.

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MR. FISHER: speculation. THE COURT:

Objection, Your Honor.

Calls for

I'll ignore that obviously not right

THE WITNESS: up; been a long time.

Apologize.

Get a little bit riled

This first process which, again, I don't consider it to be relevant because the problem, from my perspective, went away completely. All these references to the property; came to seal, and then the problem went away; all these references to the cooperative making attempts to seal the units on both sides and then the problem went away; so, it was obviously the sealing that fixed the problem. Nothing The

could be further from the truth, "Problem went away." reason there's no correspondence between the late '90's and early 2008 is it wasn't a problem for me.

The smoking

very much diminished because the Popovics changed their smoking habits MR. FISHER: speculation. THE COURT: THE WITNESS: You can say whatever you observed. This association has -- everyone The Objection, Your Honor. Calls for

has made up to the correlation is not correct. sealing didn't fix the problem.

The problem went away,

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and I didn't have another problem until it became very much a problem in late 2008 or so when we started the process again. BY MR. SZYMKOWICZ: Q. correct? A. Q. Yes. And she testified, I believe, that she sort of Is that your experience? That long period of You were in Court when Dory Ipolito testified,

just dealt with it. A.

I didn't have a problem.

time between the end of the first complaints process, which by the way was never formally concluded -- If you look back at those letters referred to this morning, they say very explicitly, This is an attempt to address the issues; not an addressing of the fundamental underlying problem. MR. FISHER: Objection, Your Honor. The

documents speak for themselves. admitted. THE COURT: THE WITNESS: with it. Sustained.

They have simply been

So as I was saying, I didn't deal This suggestion

It wasn't a problem for me.

that I lived with this problem continuously for fifteen or so years and then woke up one morning and decided to sue is absolutely outrageous and offensive. It's hard for me.

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THE COURT:

I think the question was:

What were

the steps you took with that early Nineteen -THE WITNESS: Yes, sir, we went through the There was a letter sent that

complaints panel process.

was referred to this morning which indicated, We'll see if this helps to address the problem. That was it. There

was never any formal direction from the cooperative or conclusions saying, okay, problem solved. move on. You know, let's

And after we went through that formal complaints That's why I think Dory It wasn't a

process, the problem went away.

and I decided not to do anything anymore. problem. BY MR. SZYMKOWICZ:

So when it was no longer a problem, what year

was that, 1998, '99? A. Shortly after that process we went through, I

think from early 1998, for ten years until all of a sudden it came back with a vengeance in 2008 or so. Q. Is it coincidence that it happened about the

same time you were doing your renovations? MR. FISHER: Objection, Your Honor. Leading the

THE COURT: THE WITNESS:

Go ahead. I don't have any knowledge of why I wasn't nor did I

it came back other than it came back.

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have any desire to monitor the Popovics' activity.

Their

inclination -- What I understand to have happened is that they changed their smoking habits. MR. FISHER: Objection, Your Honor. How do you know that?

MR. SZYMKOWICZ: THE COURT: admissions directly. THE WITNESS:

Only what you observed, well, or any

The other neighbor that has been

referred to, Coburn and I have had discussions about this. He has had discussions with Dory; also James Coburn, who unfortunately is no longer with us. Q. Tell us about the 2008 revelation. There's a

problem again? A. Q. time? A. Sure. Did it happen overnight? Did it build up over

Tell me a little bit about this. It seemed to come on pretty suddenly. We tried

very hard to work through the same collaborative polite process that we tried the first time. I spoke to my I sent

neighbor, Svetlana, directly on several occasions. Mr. and Mrs. Popovic a series of letters. to the cooperative; tried to resolve this. problem I couldn't live with.

I sent letters It was a

It was an unbearable living

situation, and I have to say that, yes, I may have answered the complaints process thirteen or 14 years ago.

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That doesn't make it right that I have to live with a condition today. Q. This is just very offensive to me.

I direct your attention to Defense Exhibit No. It's in that book. I'm sorry; 27, page four?

27 on page four.

MR. FISHER:

(Off the record discussion ensued.) BY MR. SZYMKOWICZ: Q. page four. A. I direct your attention to paragraph eighteen on Can you read what that says? Yes. These are the notes I went through with This is only

Frank, my contractor, several iterations.

one of them; very specifically called out to him this smoking problem that I had with the neighbors and asked him to be very careful about doing whatever he could to help solve it, and I asked him for any recommendations. He gave me assurances that they would do whatever is possible to seal or otherwise remediate the situation. Q. What's the date of this letter? MR. FISHER: Exhibit Number at least? Twenty-seven.

MR. SZYMKOWICZ: THE WITNESS:

July 19th, of '07.

BY MR. SZYMKOWICZ: Q. So is it fair to conclude in July of 2007 you

were experiencing some sort of problems with the Popovics

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smoking? A. Yes, I apologize if I misspoke. It's hard to I

remember the specific date and time when it started.

obviously know when I sent my first letter to the Popovics and first letter to GHI because I have records of that, but the actual communication of when the problem came back, from looking at this, was before the renovations got started. Q. So at the time you wrote this letter in July of

2007, can you tell me what you were experiencing with regard to the secondhand smoke problem? A. Sure. As I said many times, it was an awful I can run down the list of symptoms.

living situation.

It's like walking into a smokey bar if you don't want to be in a smokey bar. I understand people want to smoke. That's voluntary. If it's I

have no issue with that.

involuntary, as in my case, I found it very difficult to breathe. My heart was racing. My eyes were tearing up, It

sneezing, coughing, congested, coughing, you name it. got so bad I had to go to the doctor. I went to the

doctor twice, my local doctor, Dr. Granite, and I got some antibiotics for upper respiratory infections. Q. Did these medical conditions happen in '07 or

was it later? A. This was before any of the work I did on my unit

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and, of course, and after. list; I couldn't sleep. headaches.

Not to make a huge laundry I had

I felt nauseous at times.

It was just a terrible, terrible situation, I sent letters to GHI

and I think I met with Gretchen.

saying I'm on the verge of getting a hotel room. Q. A. Why didn't you ever move out? I find this suggestion that I could just move

out or like Dory said, just move out, to be offensive and humiliating. improve it. It's my house. I love my house. I spent a lot of money to I like where I live. I

don't want to move out.

Maybe I'll have to.

This, to me, seems an unreasonable result, an unreasonable living situation. I don't think I should

have to go rent a hotel room and put my monthly co-op payments in escrow to prove a point. I made do as best I could. address the problem. I took steps to help

This situation that I just sat there I did the polite,

an absorbed it is ridiculous. neighborly thing. procedures. anything.

I went through the administrative

The cooperative told me, we can't do Go talk to the neighbor.

Neighbor said, I can't do anything. the co-op. I'm completely stuck. Q. Why didn't you stay in a hotel?

Go talk to

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A.

A, I didn't have money for that.

I'm still I'm not a

paying my monthly co-op fee and my mortgage. wealthy guy. That's my house.

I wanted to fix the

problem and stay in my house. Q. A. Q. A. Q. A. Q. A. You have a girlfriend? I do. Why didn't you stay at her house? I did on occasion. Do you have friends? Sure. Why don't you stay at their houses? It's my house. Again, this is humiliating to

have to say I can just deal with the problem by leaving the house when Popovic is smoking, or vacate my unit for months at a time to prove a point. civilized thing to do. cooperative. I did what is the

I looked at the rules of my

I followed the rules explicitly, and I got

absolutely no result. Q. I direct your attention to Exhibit No. 23. Have

you ever seen this document before? MR. GOECKE: I'm sorry; Plaintiff's, Defendant's

MR. SZYMKOWICZ: THE WITNESS:

These are all Plaintiff's.

Yes, No. 23 is the first letter I

sent to my neighbor, Svetlana Popovic, describing the

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problem and trying very hard to work it out in a polite fashion. I thought it was the civilized thing to do, and

I was hopeful that that would solve the problem. BY MR. SZYMKOWICZ: Q. What made you write this letter on January 4, Obviously, this had been going

2009 as opposed to before?

on since, at least, July of '07 when you wrote your letter to Frank, the contractor? A. Sure. I had several discussions with Svetlana.

I would go knock on the door and indicate what the problem was, and it wasn't getting any resolution, and the problem was the same or getting worse; so, I thought it might be necessary to keep records of this just like we did back in 1997. I tried very hard to do this in a gradual process.

I very much didn't want to wind up where I am today. MR. SZYMKOWICZ: Your Honor, move the admission

of Exhibit No. 23 into evidence. THE COURT: MR. FISHER: THE COURT: Any objection to 23? No objection. It will be admitted.

(Plaintiff's Exhibit No. 23, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: Q. Moving on to Exhibit No. 24, can you tell me

what this letter is?

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A.

Sure, and I have to say, I'm just embarrassed to

have to go through this long record of communications, but it turned out to be necessary. This is Svetlana's response to me after receiving my letter saying she is going to try to take relevant steps to prevent this from -- this condition from occurring. MR. SZYMKOWICZ: into evidence. THE COURT: MR. FISHER: THE COURT: Any objection? No objection. It will be admitted. Your Honor, I move Exhibit 24

(Plaintiff's Exhibit No. 24, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: Q. letter? A. Follow up letter from Svetlana indicating that I'm showing you Exhibit No. 25. What is this

GHI came and did the seal or sealed the walls between the two units, and they bought an air filter and hoped this will solve the problem of cigarette smoke. And this, I now know, to be not a resolution of the problem. MR. SZYMKOWICZ: into evidence. Your Honor, I move Exhibit 25

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MR. FISHER: THE COURT:

No objection, Your Honor. It will be admitted.

(Plaintiff's Exhibit No. 25, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: Showing you Exhibit No. 26, what is this? My response to Svetlana indicating that then, It's not

what I know now, that this is a serious problem.

just a question of putting some caulk here and there and trying to the seal the place, but it can come through any other venues, including primarily plumbing. It has been

referred to this morning; not so much sealing around the plumbing or sealing around the toilet; it's the fact that air flows through the plumbing, itself, between the units. So I say I'm going to continue to monitor the situation and see if it continues. MR. SZYMKOWICZ: I move the admission of Exhibit

No. 26 into evidence, Your Honor. THE COURT: MR. FISHER: Any objection to 26? 26, Your Honor, no, no objection.

(Plaintiff's Exhibit No. 26, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: Exhibit No. 27, can you tell me what this

document is?

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A.

Yeah, this is a letter that actually followed my

discussions with Dory because I met with Dory to try to figure out what to do about this problem. I wasn't

getting anywhere with my neighbor with increasingly firm but polite letters, and the advice I got was to talk to the cooperative and, in particular, Ms. Overdurff; so, I, in fact, did meet with Ms. Overdurff in person; with Svetlana informally to try to resolve this. I'm not sure

if that was shortly before or shortly after I sent this letter. I think it was after. This would have been my

first formal notice to the cooperative seeking, in good faith, some advice on what to do to help solve this problem. MR. SZYMKOWICZ: 27 into evidence. THE COURT: MR. FISHER: Any objection to 27? Your Honor, I do object with Your Honor, I move Exhibit No.

respect to 27; not with respect to the fact that Mr. Schuman sent this letter to Ms. Overdurff, but with respect to the statements made that are in this document that are hearsay; so, for purposes of -- for purposes of recognizing the letter as one sent by Mr. Schuman, I don't object; only with respect to the truth or veracity of the statements made with respect to what experts told him about the issues, I would object on that basis to those.

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THE COURT:

I'll admit the letter.

I'll

disregard those hearsay portions, but I think it's important that, at least, it suggests to GHI issues or concerns. (Plaintiff's Exhibit No. 27, previously marked for identification, was admitted into evidence.) MR. FISHER: Thank you.

BY MR. SZYMKOWICZ: So with regard to Exhibit No. 27, is this the

first notification you have given to GHI in the 2000s that there's a problem with the Popovic smoking? A. Yes. It wasn't just from me. It was from Dory

as well because it wasn't just my problem; although, I think I had more of a problem than Dory did. MR. FISHER: Objection with respect to

speculating about what Ms. Ipolito. THE COURT: Let me also suggest with regard to

this particular exhibit, I suppose if we were in front of a Jury, we might dedact some portions of it, but again, for my purposes, I think it appropriate: timing. I'm admitting 27. BY MR. SZYMKOWICZ: Moving on to Exhibit No. 28. Can you tell me noticed GHI and

what that document is? A. Yes. Looks like Svetlana's response to GHI. If

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I could just take a second to read through it. Yes, I have to point out one or two things in this letter. First, the statement, "This matter was

brought before the mediation panel eleven years ago and successfully resolved by GHI." I very much dispute this, that that occurred. As I said before, I tried to be very explicit about this. It wasn't the fact that GHI came and caulked around the baseboards or caulked in the attic that caused the problem to go away. The problem went away because there wasn't as It was

much smoking, and I didn't have the problem. because Dory and I -MR. FISHER: THE COURT: THE WITNESS:

Again, Your Honor, I object. The question was -I recognize the exhibit. Your Honor, I move Exhibit

MR. SZYMKOWICZ: No. 28 into evidence. THE COURT: MR. FISHER: THE COURT:

Any objection to 28? No objection. It will be admitted.

(Plaintiff's Exhibit No. 28, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: Q. Do you have any comment with regard to the

statements made by Svetlana Popovic in this letter?

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A. Q. correct? A.

I don't think they are correct. Which specific sentences do you believe are not

As I stated previously, the problem didn't go

away because GHI came and caulked around the baseboards and caulked around several areas in the attic because -MR. FISHER: Your Honor, I'm going to object At

with respect to this questioning regarding the letter.

this point, Your Honor, he's testifying about what he did with Mrs. Popovic. At this point, I don't see how that is

relevant to this issue, and more importantly, while the document has been admitted, you know there's going to be testimony later that they can cross-examine Mr. Popovic on with respect to these issues; if he wants to ask him specifically questions about the same content, but to now opine on specific disagreements, overstatements made by Mrs. Popovic, I don't see how that really pertains to what we are hear for. THE COURT: I'll allow it in. Some respects

it's repetitive but consistent. THE WITNESS:

It's okay.

So this, in my view, completely

mischaracterizes the problem; mischaracterizes the solution; as I indicated, the problem went away, and the suggestion was because it was this correlation between caulking around the baseboards and caulking around parts

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of the attic is an association that is not a correlation. There is no cause and effect here. That did not solve the

problem; otherwise, I wouldn't have sat there for ten, fifteen years quietly breathing in the smoke; look up one day and said, oh, now it's a problem. absolutely ridiculous. filter. This is just

Also the reference to the air

The air filter didn't solve the problem at all. That's all I'll say on that letter.

Q. A.

Exhibit 29, what is this document? So, again, embarrassed to have to say, this is

my response to Svetlana, but I thought it important to keep a record of all these communications. This is where

I responded to many of the statements that Ms. Svetlana has made in her letter. to solve the problem. successful. experiencing. sleep at night. I thank her for attempting to try I indicate it hasn't been

I go through the symptoms that I'm It's a very serious problem that I can't I have to go to the doctor, and I tell

her this is an immediate problem. I was just absolutely overwhelmed, and I needed to get an immediate resolution, and the problem was continuing. This is, again, I think here, the first reference to, well, your renovations caused the problem. And I again mentioned that GHI inspected this

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job before, during and after multiple times and said it was absolutely fine. I note here the conversation with Ms. Overdurff references that the Popovics don't plan to stop smoking. Say several times, it needs to stop immediately. I can't live this way. MR. SZYMKOWICZ: evidence Exhibit No. 29. THE COURT: MR. FISHER: Any objection to 29? Your Honor, similarly to the prior Your Honor, I move into

exhibit in this case, Your Honor, I would object to the statements contained within the document that are hearsay with respect to statements made by Ms. Overdurff toward him. I think there's also representations here about

opinions and conclusions with respect to Mr. Schuman's conclusions with respect to what did or did not work; so, with respect to the statements made -- really good expert testimony with respect to what does or doesn't work in terms of smoke infiltration, I'd object before a Jury; ask those to be redacted, but in this case, I think Your Honor is capable of making those distinctions. THE COURT: Thank you. I'll make -- I'll note

the objections on that basis, and I'll admit the document. MR. SZYMKOWICZ: THE COURT: So we are admitting 29?

Oh, yeah.

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(Plaintiff's Exhibit No. 29, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: I draw your attention to the third paragraph of You are talking about not being able

the Exhibit No. 29.

to sleep at night; experiencing frequent headaches, persistent cough requiring cough syrup, decongestant, cough expectorant, along with pain relievers. Can you talk to me about the medical effects you were having which led you to put that in your letter, which is Exhibit 29? A. Sure. MR. FISHER: Your Honor, I'm going to object if

he's going to offer opinion testimony with respect to what was leading to these symptoms he was having. is where this was going. THE COURT: Well, it's not a medical diagnosis, I think that

but you can say what you're experiencing at the time, and whether or not I can draw the inference or not is something I'll have to decide. THE WITNESS: difficulty breathing. letter. So I couldn't sleep. I have had

I'm not sure if all this was in the

This is what I was experiencing at the time: I had my eyes -- water in my eyes; was I'm not -- I

rapid heart rate. congested.

I think I mentioned headaches.

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don't mean to sound like a hypochondriac, but these were real symptoms. I had to make a doctor's appointment. I

went to my doctor twice; just an absolutely awful situation. I think I -- sneezing on occasion too. It's,

like I said, like walking into a smokey bar when you don't want to be there, very, very uncomfortable. Q. What facts led you to the belief that you have

that it was the Popovics' smoke that was causing you to have these medical issues? A. I didn't have these issues before the smoking

problem started. MR. SZYMKOWICZ: THE COURT: THE WITNESS: Objection.

Go ahead. They happened with a vengeance

very close in time to this smoke. I'm not saying that the right way. So I never used to get these infections, upper respiratory infections until the late 2000's. Winter of I had

2008, 2009, 2010, I had very serious difficulties. to go to the doctor for these upper respiratory infections; get treated for it. that. Q.

I never used to have

How long after, in terms of minutes and hours,

did you have these problems from the time you smelled the Popovic smoke?

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A.

It's immediate.

Some of them are immediate.

Some of them you wake up in the middle of the night; you feel nauseous because there's this odor in the apartment; pervading the apartment. walk in the home. Some of it's right away when you

In fact, I could smell the smoke You know, the

walking up my pathway on the service side.

common pathway between units, you could smell the smoke wafting down the pathway, and you walk into my unit, and the place reeks of smoke, and that's when these symptoms started. I won't say every single one happened every They varied, but it was in

single time like clockwork. response to that condition. Q.

So what did you feel your body doing when you

breathed in the secondhand smoke? A. I don't have allergies, but from hearing people I couldn't stand

talk, it's like an allergic reaction.

it, and I had to conversely in the winter run around, and open all the windows and try to let the smoke pervade out, and in the summer, the reverse. Q. But when the secondhand smoke hit your nose or

your lungs for the first time upon coming home from work, tell me what your body felt like to you? A. Again, not to sound like a hypochondriac; it's

almost like recoiling from something you don't want to experience. Everything tightens up. You get very

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anxious.

Your eyes start to burn, you know, rapid

heartbeat; not to go through the laundry list again; just not a comfortable situation to be in, and you know, maybe I should have gotten a hotel room, but I didn't. Q. Why do you believe that these conditions, for

lack of a better word, were directly related to the Popovics smoking? A. I experienced them when I experienced the smoke.

I didn't experience them when there wasn't smoking, and I didn't experience them when the Popovics stopped smoking inside. Q. I direct your attention to Exhibit No. 30. Can

you tell me what this document is? A. This is the letter from the cooperative to my

neighbor, Svetlana, which I did not see during the administrative process at all, and really infuriated me when I got to see it in this litigation. Administrative

process allows only for each side to present -MR. SZYMKOWICZ: THE WITNESS: THE COURT: Objection, Your Honor.

-- their facts separately. Sustained. Can you identify this exhibit? Your Honor, I move into

The question is: MR. SZYMKOWICZ: evidence Exhibit No. 30. THE COURT:

Any objection to Number 30?

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MR. FISHER:

I do object with respect to

Mr. Schuman's testimony about this letter that he just indicated until this litigation, he never saw; never saw a copy of; not familiar with. He didn't send the letter;

didn't receive the letter; so, I do object to the foundation for Mr. Schuman's testimony about any contents of this letter. I don't think it's properly admissible

through this witness. MR. SZYMKOWICZ: of party opponent. Your Honor, this is a statement

This evidence was presented. He can present Ms. Overdurff about

MR. FISHER:

this letter, but not Mr. Schuman, who has no foundation. THE COURT: May be delaying the inevitable, but,

perhaps, this is not the witness to introduce this letter; so, I'll reserve on Number 30. MR. SZYMKOWICZ: Your Honor, moving to Exhibit

BY MR. SZYMKOWICZ: Mr. Schuman, can you tell me what this letter

It's the letter from Ms. Overdurff to me

indicating, I think, what the cooperative is planning to do to address the situation. MR. SZMKOWICZ: 31 into evidence. Your Honor, I move Exhibit No.

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THE COURT: MR. FISHER: THE COURT:

Any objection to 31? No objection. It will be admitted.

(Plaintiff's Exhibit No. 31, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: Did you have a problem with any of the

statements that Gretchen stated in this letter to you? A. Q. A. Yes, I did. Which ones? What is particularly infuriating is -- I'm

sorry; this is Exhibit 31. No, I appreciated this letter because it indicates the cooperative's willingness to fully explore the issue. Mr. Repace. Gretchen did have conversations with This indicates the cooperative trying to She

figure out what might work to help solve the problem.

asked for me to follow up to see if I can do any further sealing, because the implication here is that the renovations caused the problem. Absolutely not true. As I said earlier, the

symptoms started before renovations started. Q. Drawing your attention to Exhibit No. 32, can

you tell me what that document is? A. It's my response to Ms. Overdurff putting in

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writing what I more or less just said. MR. SZYMKOWICZ: Your Honor, I move the Exhibit

32 be introduced into evidence as Exhibit No. 32. THE COURT: MR. FISHER: Any objection to 32? Court's indulgence, Your Honor?

I'm just looking at that for a moment. Your Honor, I don't object with respect to notice to prior exhibits. I believe there's numerous

statements made here that would amount to hearsay; also, which goes to expert testimony with respect to what does or doesn't work, again, Your Honor; so, I would object on that basis. THE COURT: All right. I'll note the objection;

will admit the exhibit; then I'll try to weed out the hearsay if appropriate. (Plaintiff's Exhibit No. 32, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: Q. paragraph. I draw your attention to page two on the bottom Can you tell me what you meant by that

paragraph that states, "In the weeks since our meeting, I have had two medical appointments. Smoke conditions It is

inside my unit are unbearable on most nights.

difficult to put into words the discomfort and pain experienced by a nonsmoker forced to breathe cigarette

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smoke on a regular basis." Can you put it into words today? A. This is my attempt -- and just to finish out

that paragraph, I mentioned that the cooperative was really leaving me with no choice, and essentially begging them to try to find a solution so I don't have to wind up where I am today. in my apartment. It's a situation where I could not live It was very painful, and I thought

suffering medically, I wanted to try to impress upon them how serious a problem this was because throughout the process many have referred to the smell problem, which I thought was not a smell problem at all. It was a health

problem, and I was desperate to try to convince the cooperative to take some action to put a stop to this health problem immediately. MR. FISHER: Objection, Your Honor.

Characterization of helath problem in terms of what he thought, but to say, in fact, what the case is. THE COURT: That's his view.

BY MR. SZYMKOWICZ: Q. Moving to Exhibit No. 33, can you tell me what

this document is? A. This is a follow-up letter from me to

Ms. Overdurff again trying every possible route to try to resolve the problem and responding to issues raised in

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previous correspondence from before. MR. SZYMKOWICZ: No. 33 into evidence. THE COURT: MR. FISHER: THE COURT: MR. FISHER: others. THE COURT: MR. FISHER: Okay. I don't know if the letter refers Any objection to 33? Yes, Your Honor. Same objection? Same objection and a couple of I move the admission of Exhibit

to an enclosure which is not here, number one; number two, again, Your Honor, I think on a number of issues in this letter goes to legal conclusion, goes to expert opinion; goes to hearsay. On this one, Your Honor, I really do

object and don't think it's proper to have this letter admitted for purposes of these statements that are in this letter that clearly are attempts by Mr. Schuman to have all these things accepted as fact. Certainly, if Mr. Schuman wants to testify about what he conveyed to the association, that's one thing, but again, Your Honor, I think that the content of this letter goes too far with respect to the conclusions and the quotations that he has in here with documentation which, at this point, would still be considered hearsay. THE COURT: All right. There is a -- well, I'm

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going to reserve on this one, at least until after Mr. Repace has testified; see where we are then. BY MR. SZYMKOWICZ: Q. At the time you wrote this letter,

Exhibit No. 33, did you have any plans to file a lawsuit against either GHI or the Popovics? A. I desperately wanted not to do that, and you'll

see that running throughout my communications; as I said, is begging the cooperative and my neighbor to come to a resolution that was more efficient than bringing everybody here today, but I had no other choice. I think I

mentioned that I don't have any other choice; that if I can't get a resolution from the cooperative, and my neighbor said he's going to continue to smoke, I have no other route other than to move out. Q. issue? A. It's incredibly expensive, incredibly Been in Courts many times as a It's an awful Why did you not want to go to Court on this

emotionally draining.

lawyer; know better than being a Plaintiff. process.

It's awful for all parties concerned; awful for It's awful for GHI. It's awful for me. I'm

Mr. Popovic.

sympathetic to Mr. Popovic's position. his wife's position.

I'm sympathetic to I

I don't want to go through this.

just want to have a house that is free of smoke; instead,

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I have to sell my house. Q.

This is absolutely intolerable.

You participated in a meeting last week in

Greenbelt about secondhand smoke? MR. FISHER: he did last week. Objection, Your Honor, as to what

Holding a meeting about secondhand

smoke is irrelevant to this case here. THE COURT: know so far. He went to a meeting. That's all we

I'll wait for the next question.

BY MR. SZYMKOWICZ: Q. A. Q. You had a meeting, right? I did. Did you -- is anybody funding, outside of

yourself, this litigation? A. Absolutely not. Absolutely not, and I drained

my retirement account to pay for this. Q. This is your issue with GHI and the Popovics';

not the American Cancer Society or American Lung Society? A. Q. A. Absolutely not. The smoke free CDC or anybody else? Absolutely not. It's like my neighbor has a It's a small

vicious dog; keeps trash in his yard.

problem that should have been resolved at the cooperative level. It's not any mission or big policy discussion.

It's a problem I need resolved to live in my house. Q. Have you received one penny of funding from any

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outside organization? A. Q. Absolutely not. Every penny you have spent on this case to come

to Court today has come from you? A. Yes. MR. FISHER: I don't see what he spent in

litigation is germane to this Court. THE COURT: funding. MR. SZYMKOWICZ: I think that GHI is making this He spent all the money; no outside

case out to be, you know, something that is more than just a battle. You know, I think that the implication is that He just wants a

there's this crusade that is going on. result. THE COURT:

Well, in rebuttal, that may be an

issue, but as of this point, GHI hasn't put on a case. BY MR. SZYMKOWICZ: Q. Drawing your attention to Exhibit No. 34, can

you tell me what that is? A. It's another of my letters to the cooperative, I'm corresponding with Ms. Overdurff

Ms. Overdurff.

because, at this point, I think our meetings and attempts at resolution were before the complaint panel. I think,

ultimately, Ms. Overdurff referred to it as the complaint panel; so, it was further follow up to Ms. Overdurff.

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MR. SZYMKOWICZ: Exhibit No. 34. THE COURT: MR. FISHER:

I move this into evidence as

Any objection to 34? Yes, Your Honor, similar to

Exhibit 33, I pose the same objections and same bases, Your Honor. Several quotations here about what Mr. Repace

told; what Mr. Repace's conclusions are; what the interpretation is; what can or cannot alleviate secondhand smoke; goes to not the ultimate issue, but it's expert opinion, and that the contents of this letter, again, Your Honor, go to the ultimate issues in this case, which Mr. Schuman can't testify to the hearsay; certainly subject to Mr. Repace's testimony, if we hear something different. THE COURT: to Mr. Repace. About two-thirds of this does refer Mr. Repace

I'll reserve on this.

testifies; essentially adopts these, whatever, we may reconsider and revisit it then. BY MR. SZYMKOWICZ: I direct your attention to Exhibit No. 34. "I

deeply appreciate his efforts to" blah, blah, blah. I think you were accused, in GHI's opening statement, of being polite. Is that what your intention

was, to be polite in your correspondence with GHI? A. Absolutely.

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MR. FISHER: THE COURT: THE WITNESS:

Objection, Your Honor. That's all right. Absolutely. Absolutely. I

referred to Mr. Ralph, who I think is going to take over as general manager shortly as to trying to find some possible engineering solutions to the problem; if that would have worked, great; so, I'm expressing my appreciation to the cooperative for trying to find some resolution. Q. A. That's why I'm being polite and thankful.

Do you think it was a crime to be polite? Of course not. MR. FISHER: THE COURT: THE WITNESS: Objection. Sustained. I thought exploring a very

methodical way, a very polite solution to this problem that I had. BY MR. SZYMKOWICZ: Exhibit No. 35, can you tell me what this is? It's a letter to me from the Board President,

Suzette Agans, following my letters to Ms. Overdurff, which is also particularly infuriating. MR. SZYMKOWICZ: 35 into evidence. MR. FISHER: THE COURT: No objection, Your Honor. It will be admitted. Your Honor, I move the Exhibit

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(Plaintiff's Exhibit No. 35, previously marked for identification, was admitted into evidence.) THE DEPUTY CLERK: THE COURT: Yes. Thirty-five.

BY MR. SZYMKOWICZ: What did you do when you received Exhibit 35? Not being facetious; other than pounding my head

against the wall; letting out a few choice comments, I was really upset by this letter because the letter is telling me, co-op can't do anything. Go work it out with your

neighbor or move; so, my neighbor is saying he's not going to stop smoking, and he's not going to move; so, the cooperative is basically telling me that's it. done with you. Q. Do you believe that this was the result that the We are

GHI governing documents and contracts requires in this case? A. Absolutely not. MR. FISHER: Objection, Your Honor. Calling

for a legal conclusion on the interpretation on what the contract documents may require. I'll also -- I don't

think it's relevant because there's no breach of the contract claim against GHI. MR. SZYMKOWICZ: MR. FISHER: There is.

That was dismissed,

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Mr. Szymkowicz.

There's no breach of contract claims; so,

all these comments about what the contract does or doesn't do, which ultimately is Your Honor's decision anyway, really doesn't pertain to the case. THE COURT: Sustained. Court's indulgence, Your Honor?

MR. SZYMKOWICZ:

The breach of the contract, I believe that the contract claim is still -THE COURT: We'll check the docket entries. I

don't recall off the top of my head. MR. SZYMKOWICZ: now. I'm looking at the order right

I don't see a dismissal on the contract claim. MR. FISHER: Two claims remaining as to my

client:

The implied covenant of quiet enjoyment, which

does relate to the contract, implied covenant claim. MR. SZYMKOWICZ: MR. FISHER: Pled as breach of the contract.

Doesn't matter how you describe The other

it; not an actual contract claim directly.

issue is the nuisance claim, negligence claim, against my client. Claims against Mr. Popovic remain. separate. THE COURT: In any event, I'll be interpreting Those are

the meaning of that mutual portion. BY MR. SZYMKOWICZ:

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Q.

Do you believe that GHI violated the duty that

they owed to you to do something in this case? A. Q. A. Absolutely. Why? Because they found it to be a nuisance and a

health hazard, and the contract says if there's a nuisance, that GHI has to take steps to review that problem. Very clear cut chain in my view. They find it

to be a nuisance; they find it to be a health hazard; therefore, because the contract said you can't do that to your neighbor, they have to take steps to remove it. MR. FISHER: Your Honor, I object with respect

to what the legal requirements are under the agreement. THE COURT: Again, I'll interpret the agreement.

BY MR. SZYMKOWICZ: Q. owed you? A. As I said, it's very different than living in a GHI is responsible for the structure. As your landlord, what duties do you believe GHI

single-family home.

They are responsible for if my neighbor doesn't continue to cause a nuisance for me, period. They concluded this

was a nuisance; then they didn't do anything about it. MR. FISHER: Objection, Your Honor. There has

been nothing submitted that said what GHI did or did not do in this case. That's the ultimate conclusion of what

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they found, and Mr. Schuman continues to testify to what he thinks they did and what have you. this point, Your Honor. THE COURT: We do have quite a series of He's speculating at

correspondence back and forth that certainly shows some efforts. MR. FISHER: Sure, but it's up to Your Honor,

ultimately, to determine what that all means; not Mr. Schuman's conclusions. THE COURT: And his feeling is they didn't heed

the contract, "contract," okay. BY MR. SZYMKOWICZ: Q. A. What duties did GHI owe you as your landlord? If they found a nuisance, to abate the nuisance.

GHI's letters say, Courts find this to be a nuisance. GHI's letters say, it's a health hazard. clear cut. That's very

Couldn't be anymore clear cut; so, they were

obligated to remove that situation as my landlord. Q. A. Q. A. Did they? They did not. What did they do? They told me, essentially, to move out; either It's a difficult

work it out with your neighbor.

situation; not solvable unless one party wishes to cease smoking or relocate.

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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 is? A. Q.

I'm not -- Smoking, my neighbor says he's going to continue to smoke; so, GHI is telling me if you don't like the smoke, move out. It's insulting. MR. FISHER: Your Honor, I object to his

speculation about what they were telling him. THE COURT: I'll read 35.

BY MR. SZYMKOWICZ: Exhibit 36, can you tell me what this document

As is mentioned, this is GHI's conclusion this "Unwanted smoke is considered a

is a health hazard.

hazard in this situation." It can only be solved by those of you involved. "Take whatever steps are necessary to allow both you and your neighbor to enjoy the peaceful use of your homes and yards." What else am I supposed to do? everything. I have tried I've been

I have been through the process.

through the administrative process. to stop.

I asked my neighbor Cooperative You got

He told me he's not going to stop.

is saying that's all we can do. to move. MR. SZYMKOWICZ:

It's a hazard.

Your Honor, I move for the

introduction into evidence as Exhibit No. 36.

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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. witness.

MR. FISHER:

Your Honor, again, on this Again, this is a document

document, I do have to object.

that Mr. Schuman, himself, actually did not author; did not receive; didn't -- no foundation with him actually reviewing it before today in Court. that basis. He may be able to get it in through another I object to it on

THE COURT:

Again, I think we may be delaying

the inevitable, but I'll reserve at this point. BY MR. SZYMKOWICZ: Mr. Schuman, did you receive this document at

some point? A. I did during the discovery process in this case. I asked the

This is something I very much wanted to get.

cooperative for what they told my neighbor during the complaints panel. meeting minutes. Couldn't get that. Couldn't get that. I asked for the I didn't get any

correspondence they had with my neighbor until I filed this case. Q. When you filed this case, both Exhibit No. 30

and Exhibit No. 36, you were there when GHI, itself, as well as its Board of Directors and general manager were asked questions about these two exhibits, weren't you? A. Absolutely.

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Q.

Was there any challenge that these documents

were not statements of GHI? A. No. MR. FISHER: Objection.

BY MR. SZYMKOWICZ: Q. They admit these documents were GHI's

statements? A. Of course. MR. SZYMKOWICZ: Your Honor, on those grounds, I

think he has now authenticated these documents. THE COURT: somebody else. MR. SZYMKOWICZ: Delay us for another day. It's still hearsay. I'll let

Delay us for another ten minutes, if that's what they want. BY MR. SZYMKOWICZ: Q. A. Exhibit No. 37, can you tell me what that is? I guess this is my response to Ms. Agans

following her letter to me and my taking issue with several statements in her letter. MR. SZYMKOWICZ: No. 37 into evidence. THE COURT: MR. FISHER: Any objection to 37? Your Honor, just the same types of Your Honor, I move Exhibit

objections I made to some prior exhibits, Exhibit No. 33,

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36, with respect to -- excuse me -- 35; with respect to statements Mr. Schuman makes with respect to what others told him; his conclusions on what smoke can and can't do, those type of issues; so, I would object, Your Honor, again. There's a lot of comments in here about what

Mr. Repace says; actually quotations from Mr. Repace's reports; did not get involved in this case thus far; so, on those bases, Your Honor, I believe the objection is still warranted, and I would ask that they not be admitted at this point in time. THE COURT: testifies. BY MR. SZYMKOWICZ: Q. A. Exhibit No. 38, what is that? I think it's one of my last letters to I'll reserve until after Mr. Repace

Ms. Overdurff asking her if I have any other administrative steps to go through or that this is a final decision or if this is the final decision of the cooperative. MR. SZYMKOWICZ: No. 38 into evidence. MR. FISHER: THE COURT: No objection to 38, Your Honor. It will be admitted. Your Honor, I move Exhibit

(Plaintiff's Exhibit No. 38, previously marked for identification, was admitted into evidence.)

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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. A.

BY MR. SZYMKOWICZ: Exhibit No. 39, what is this? Correspondence from Ms. Overdurff saying I don't

get the formal hearing, that I would have liked, to present all this evidence before the Board. And

concluding that that is the final position of the Board, and any resolution must come from those directly involved. Again, particularly infuriating because Mr. Popovic is saying -- and I have those letters -- go talk to the Board. Go talk to the cooperative about it,

any structural solution. And here I have the the Board saying, go talk to Mr. Popovic. "The Board regrets there's nothing more it

can do for you regarding this matter." MR. SZYMKOWICZ: 39 into evidence. THE COURT: MR. FISHER: THE COURT: Any objection to 39? No objection. It will be admitted. Your Honor, I move Exhibit No.

(Plaintiff's Exhibit No. 39, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: Have you ever seen Exhibit No. 40? I have. What is this document?

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A.

It's Svetlana Popovic's letter to Ms. Agans

after they received the letter from the Board following the complaints panel. MR. SZYMKOWICZ: evidence as Exhibit No. 40. MR. FISHER: MR. POPOVIC: THE COURT: No objection to 40. No objection. It will be admitted. Your Honor, I move this into

(Plaintiff's Exhibit No. 40, previously marked for identification, was admitted into evidence.) BY MR. SZYMKOWICZ: Q. Number 41, can you tell me what this document

A.

These are minutes of the complaints panel.

The

first is -- 41 is looks like summarized notes from my presentation to the complaints panel that I attended with Mr. Repace. MR. SZYMKOWICZ: into evidence. THE COURT: MR. FISHER: a minute? here. MR. FISHER: Your Honor, Exhibit 41 appears to Any objection to 41? Your Honor, Court's indulgence for Your Honor, I move Exhibit 41

Trying to see -- seems to be several pages

be some sort of transcript of a hearing that Mr. Schuman

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apparently attended at GHI.

It's a transcript looks like Appears to be a

as formal as the Court does here.

transcript, which means, Your Honor, other than Mr. Schuman's statements that are contained, this is all hearsay. There are statements here by different

individuals, Ms. Lewis; there's Ms. Overdurff's statements. She can testify to what she did. There's a McFadden in here,

Mr. Schuman's statements.

Your Honor; so, several members here that, again, Your Honor aren't here to testify, and again, Your Honor, I think the document, itself, and representations are hearsay. Mr. Schuman can testify what transpired at the hearing. These statements about what people said are

hearsay; not admissible. THE COURT: Who supplied -Unfortunately, they supplied That

MR. SZYMKOWICZ:

this very late in the discovery; thus, the mystery. came in like two months ago. MR. FISHER: I disagree with your

characterization, but irrespective, it's still hearsay. THE COURT: MR. FISHER: But this was supplied from GHI? In discovery. Doesn't mean that

the document, itself, the contents of it aren't hearsay, Your Honor.

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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. Panel? A. Q.

THE COURT: MR. FISHER:

That's true. It's an authentic document from

GHI, but it's not -- the contents are hearsay. THE COURT: Hearsay Rule. MR. SZYMKOWICZ: I think he can -There may be exceptions to the

BY MR. SZYMKOWICZ: Mr. Schuman, were you at the Members Complaint

I was. Does this document accurately reflect the

transcript of what you said and what was said in this hearing? A. Sure, of course. MR. SZYMKOWICZ: party opponents now. THE COURT: They are not all party opponents if So these are statements of the

they are statements by other homeowners. MR. SZYMKOWICZ: was a member. THE COURT: MR. FISHER: Homeowners. Cooperative members. But they are serving as GHI They were Board members. This

MR. SZYMKOWICZ:

Board members or GHI Members Complaint Panel members, more specifically.

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MR. FISHER: members may have been. THE COURT:

Your Honor, I believe some of these I don't believe all of them are. May be another exception, and again,

I don't know that he can -MR. FISHER: Correct. Your Honor, may have the

opportunity with other witnesses. THE COURT: So I'll reserve at this point. Your Honor, I don't understand There were no

MR. SZYMKOWICZ: the distinction.

Panel members.

non-affiliated homeowners. meeting. MR. FISHER:

This wasn't like a public

Your Honor, he can examine

Ms. Overdurff as a GHI representative in terms of who these people are, and then Your Honor can make a ruling on it; if there's an exception to the hearsay that applies. THE COURT: will be made. BY MR. SZYMKOWICZ: Mr. Schuman, I'm showing you Exhibit No. 42. And I think that's when the decision

Can you can you tell me what this is? A. Transcript of the member complaints hearing

panel Svetlana Popovic presented. Q. A. Q. How did you receive this document? During the discovery. Who did you receive it from?

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A. Q.

GHI. Do you have any doubt that this is GHI's

business record? A. I sure don't. It's what I really asked for

during the administrative process and couldn't get. Q. Do you have any doubts as to the authenticity of

this document coming from GHI? A. I don't. MR. SZYMKOWICZ: into evidence. THE COURT: Is it a business record? Are you Your Honor, I move this exhibit

the custodian of this report THE WITNESS: THE COURT: MR. FISHER: It's not my record, Your Honor. I reserve on 42. Your Honor, I would also note, in

addition to the prior objections I made; further, with respect to this document, Mr. Schuman was not even present during this occasion; so, I don't think he has any basis to testify about any statements in this document. BY MR. SZYMKOWICZ: Q. Did there come a time when you asked Mr. Repace

to perform any services for you? A. Q. Yes. When was the first time you talked to

Mr. Repace?

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A.

I don't remember the exact date.

It was I came to

sometime during the administrative process.

understand Mr. Repace is a very well respected expert on detection of secondhand smoke. useful to hire him. What I was running into with the cooperative is anecdotal reports of how bad the smell is. I wanted to I thought it would be

make this a very scientifically measured issue, which is why Mr. Repace -Q. A. What did you specifically ask Mr. Repace to do? I asked him for advice on how to document this

issue objectively and scientifically. Q. What did you do in relation to your discussions

with Mr. Repace? A. I found out from Mr. Repace -- I recognized a

way to document the presence of secondhand smoke. MR. FISHER: Objection, Your Honor, hearsay.

Mr. Repace can testify in this case. THE COURT: He'll testify as to the methodology,

all that sort of thing. MR. SZYMKOWICZ: I asked him what he did.

BY MR. SZYMKOWICZ: Q. A. What did you do? I hired Mr. Repace, and I followed all of his

instructions very carefully.

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Q. A.

What specifically were his instructions to? To use a passive nicotine monitor; send it off

to the lab; get the results back; do a scientific report, which is what we did in this case. Q. monitor? A. I think I either received it in person by I frankly cannot remember. Came And how did you receive this passive nicotine

Mr. Repace or by mail.

with a set of instructions, including where to hang it; keep a smoking diary, and how to send it off to the lab for results. Q. Is this similar to what you were given by

Mr. Repace in the lab? A. Q. A. It looks to be similar, yes. And can you describe this for the record? I'm not an expert on the monitor. It looks like

a device that is hung from some location where the smoke is perceived; comes in a sealed container; exposed to the environment for a period of time, during which time I kept a diary noting what the conditions were. Following that

period, following that instructions, then sealed it up and sent it -- sent it off to the lab for results. MR. SZYMKOWICZ: Your Honor, would the Court

like to review this or any of Opposing Counsel? BY MR. SZYMKOWICZ:

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Q. A.

Can you tell me how you hung the monitor? Sure. I asked Mr. Repace where to deploy it,

and the instructions were, essentially, where you smell the smoke. I hung it up in the kitchen just below the kitchen cabinet; I think it was for 30 days approximately, very simple. Q. What happened when you were finished with the 30

day period? A. As I mentioned, I sealed it and sent it off

overnight mail, per Mr. Repace's instructions, to Hammond, H-A-M-M-O-N-D, Laboratory. Q. A. What happened after you sent it to the lab? Eventually, Mr. Repace produced a report

documenting the infiltration or presence of nicotine, which is a marker for secondhand smoke. report to GHI. Q. correct? A. I believe it was before the Member Complaints Before the Member Complaints Panel, is that I provided his

Panel, correct. Q. A. So the Members Complaints Panel had the report? Absolutely. They also had the Surgeon General's Again, my attempt to

Report, which I -- Ms. Overdurff.

try to convince the Board factually this is a serious

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problem that needed to be addressed; so, they had all the reports. Q. Did Mr. Repace ever personally come out and

visit your apartment? A. Q. A. Q. apartment? A. Sure. I pressed him if there was any other way Sure. How many occasions? Several times, three, four, five. Did he perform any additional studies at your

to document the presence of cigarette smoke because the cigarette smoke was a pretty fairly routine situation. Between the time period between 6:30 and 7:30, Mr. Popovic would be smoking. The smoke would come into my apartment.

I wanted to take whatever possible steps were necessary to document that; so we wouldn't have anecdotal stories going back and forth about how bad the smell was or how bad it wasn't. Mr. Repace said there's one other way to measure. MR. FISHER: THE COURT: THE WITNESS: Objection, hearsay. Sustained. I did follow Mr. Repace's advice.

The only other way to measure cigarette smoke; more particularly, particulates, he did that with the use of

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equipment, and produced another report, and he was present during the time that monitoring took place. Q. A. Q. A. When did that monitoring take place? I think within the past month or two. So this was a study for the patio smoking? Correct, because I wanted to document the

current conditions after Mr. Popovic said he stopped smoking inside because I still had this problem where the cigarette smoke from Mr. Popovic's is coming into my unit from his outdoor smoking. I wanted to document that

objectively, scientifically. Q. Do you believe there is a presence of secondhand

smoke in your unit currently after your hearing last year where Mr. Popovic agreed not to smoke inside anymore? A. Absolutely. MR. FISHER: THE COURT: senses. BY MR. SZYMKOWICZ: Q. A. What did you observe by your senses? Sure. My unit was still full of secondhand Objection. Tell me what you observed by the

smoke from Mr. Popovic. MR. FISHER: speculating. Objection, Your Honor. He's

Your Honor, Mr. Schuman is testifying that Talking about his senses is one

it's full of smoke.

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thing, but to conclude it was full of smoke; that it came from Mr. Popovic is something else. Expert testify. THE COURT: We can hear from him.

I understand that. On a day-by-day basis he can

MR. SZYMKOWICZ: testify. THE COURT: THE WITNESS: THE COURT: THE WITNESS:

What you observed? Sure. Every day.

Drawing conclusions is up to me. I can see Mr. Popovic up there

smoking, and I can literally see the smoke travelling toward my unit, and then I smell the smoke in my unit. It's Mr. Popovic's smoke. Q. A. Q. Is this with the windows opened or closed? Opened. With the windows closed, do you still smell

secondhand smoke? A. in there. I do because it's hard to get rid of once it's My understanding, it comes in through other

ways, even when the windows are closed. MR. FISHER: THE COURT: THE WITNESS: worrywart. Objection. Sustained. I don't want to sound like a

I have smoke in my unit from Mr. Popovic

smoking outside, and again, I don't want to have to --

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have to run around, like Dory indicated this morning, and live in a sealed unit with my windows closed every time the weather is nice because Mr. Popovic is out smoking. That is absolutely unreasonable. Q. Why don't you use fans or a HEPA filter to

alleviate the problem? A. smoke. Problem is caused by the presence of secondhand All these remedial measures that have been

referenced to are not effective in completely removing the secondhand smoke. MR. FISHER: THE COURT: THE WITNESS: it to be effective. BY MR. SZYMKOWICZ: Q. filter? A. Q. A. I did. How much is it? I don't know the price, but I investigated these Did you ever investigate the purchase of a HEPA Objection, Your Honor. Sustained. It's expensive. I don't believe

solutions with Mr. Repace and with Mr. Ralph, GHI, trying to explore any possible option; including spraying foam in between the hollow wall. Q. A. Why didn't you choose any of these options? They weren't going to be completely effective,

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and they are very expensive. MR. FISHER: Objection with respect to

conclusion about their effectiveness. THE COURT: Sustained. I'll accept his

conclusion that they are expensive. BY MR. SZYMKOWICZ: Q. A. Are you planning to move out of your house? I'm sorry; to finish the answer, it's like

saying I got to use ear plugs when my neighbor is playing Metallica or Ayita at 12:00 Midnight. I should not have The

to take defensive steps to mitigate this problem. problem is caused by my neighbor. little bit. Q. A. Q. sale? A. Because I have no other option. Is your house listed for sale currently? It is.

I'm sorry; I missed a

Why have you decided to put your house up for

As I mentioned Work

before, GHI has said, we can't do anything for you. it out with your neighbor. MR. FISHER: THE WITNESS: Objection, Your Honor.

Because I have no other options. I don't know what the My

I can't continue to live like this.

resolution is or when it's going to be resolved. neighbor is not going to stop smoking.

GHI is not going

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to address the problem, and how to say this politely, I'm not going to continue to live in a house full of smoke. It's not healthy. If I want to have children, it's not

healthy for my children; not a healthy environment; so, I'm not going to stay there. MR. FISHER: Your Honor, I would object; move to

strike as to whether it's a healthy environment or not. Experts testify to that. MR. SZYMKOWICZ: Notice, unhealthy. THE COURT: It's all right. Go ahead. Court has taken Judicial

BY MR. SZYMKOWICZ: Q. A. What is your house listed for sale at? I had consultations with my local real estate

agent on what to list my house for. MR. FISHER: Your Honor, I would object. The

question is what it is listed for. THE WITNESS: hundred fifty-nine. BY MR. SZYMKOWICZ: Q. A. How did you determine that price? Let me back up and put it in context. When I The house is listed for two

did my renovations to the unit in 2008, I had to have an appraisal done on the value of the unit; formal appraisal that came back as 256,000.

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MR. FISHER:

Objection, Your Honor.

It's

hearsay in terms of what the appraisal was. seen that document. THE COURT:

We haven't

Inasmuch as a person is

presumptively qualified to value their own property, I'll let him testify what his property is worth; then can certainly ask him any question to determine how he arrived at that or challenge his valuation. He's presumptively

qualified to evaluate is own property. THE WITNESS: After I had the appraisal done,

which is necessary to get the loan to do the improvements, I added the value of the improvements, $65,000.00, to the rough value of the appraisal, which in a good time to sell my house that would result in that unit selling for over $300,000.00, which is, more or less, the basis for my complaint in this case, because I have to give that up. would like to sell my house at a peak time in the market, but I can't do it. I have to sell it now. I

$259,000.00 was not the amount my realtor asked me to list it for. It was the only tolerable amount I

could list it for knowing the amount and valuing of the improvements I put into that property. Under $200,000

would have probably been a better recommendation, which is a huge sacrifice considering the value of that place at the time it was appraised and what I put into it. I

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haven't gotten any offers. any offers. MR. FISHER: THE COURT:

I don't think I'm going to get

Objection, Your Honor. That's okay.

BY MR. SZYMKOWICZ: Q. Mr. Schuman, did you make any disclosures to

potential buyers with regard to the condition of your house? A. I did. MR. FISHER: THE COURT: MR. FISHER: THE COURT: MR. FISHER: I'm sorry. All right. If I may be heard? Sure. One, he's trying to testify with

respect to this to disclosures he has made to potential buyers. He just testified there have been no potential buyers. THE COURT: He had no offers. I think we need

to hear more about it because I think he specifically said -MR. FISHER: Second one, disclosures he's

making in these sale documents in the property listed for sale in the last few weeks isn't relevant or germane to the claims against my client. Probably with respect to my

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client, that's not relevant. Mr. Popovic can decide -THE COURT: disclosures? I'll let him testify. THE WITNESS: Yes, as a result of my discussion The question is: Have you made any

with several realtors, it's on the website. THE COURT: THE WITNESS: Why? Because it's, in good faith, it's I can't hide it.

something absolutely has to be told. Any buyer would be surprised. advised me to do. THE COURT:

It's something my realtor

Objection sustained.

Strike the

part about the realtor's advice. BY MR. SZYMKOWICZ: Q. A. What was specifically the disclosures you made? The reason I'm moving because I'm being exposed

to secondhand smoke from a neighbor, just like I would say, well, there's lead paint, which we have to make a disclosure about to or asbestos, which we have to make a disclosure about. Q. A. Q. Did any legal requirements -Yes. Was there a legal reason why you made these

disclosures?

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A. Q.

I think it's a moral reason and a legal reason. What's the legal reason? MR. FISHER: THE WITNESS: MR. FISHER: THE COURT: THE WITNESS: Objection. If you don't disclose it -Motion to Strike. Go ahead. You can be sued or the realtor can

be sued for failing to disclose it as a condition. BY MR. SZYMKOWICZ: Q. A. Q. A. You are a lawyer? Yes. You know that because you are a lawyer? Yes. MR. FISHER: strike. THE COURT: Your suggestion is you have to Your Honor, I object. Move to

disclose there's secondhand smoke as a legal requirement? THE WITNESS: THE COURT: incorrect. Yes, Your Honor. I'll sustain the objection. That's

I'll take judicial notice that it's incorrect. You

There is -- can you show me a law that says that? can't, but I'll ask you. MR. SZYMKOWICZ: Your Honor. THE COURT:

I don't know about in Maryland,

There's no statute that says that.

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Next question. BY MR. SZYMKOWICZ: What do you believe your house should be valued

Depends on when it's sold.

For what I have

listed at right now. Q. Do you believe that you would be taking a loss

or making a gain on the sell of your house if you sell it now? A. It's worth more. MR. FISHER: THE COURT: MR. FISHER: Honor, not whether -THE COURT: MR. FISHER: THE WITNESS: for it in 1995. Goes to his valuation of the home. Okay, Your Honor. Certainly worth more than I paid Objection. You can say that. But that's a factual issue, Your

It's not worth what I would get for it if

I were to sell it when I wanted to sell it. BY MR. SZYMKOWICZ: Has the Popovics smoking caused you any damage? MR. FISHER: THE COURT: THE WITNESS: Objection, Your Honor. Go ahead. Well, I have to sell my house

because I'm not going to live there under these

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circumstances; not to mention the health effects both immediate and long term, which are very serious. MR. FISHER: Objection, Your Honor, with

respect to his testimony about what health effects. THE COURT: THE WITNESS: It's his view. It's okay. The

So the short answer is, yes.

long answer, I have immediate problems and very serious long-term health problems and economic problems because I have to sell my house. MR. FISHER: THE WITNESS: MR. FISHER: Objection, Your Honor. This is emotionally -Been no testimony he has actual

health effects; nothing to support the foundation that he has to sell his house. THE COURT: That may be his view. And I understand it's his view and

he's concerned that he's not going to continue to tolerate the issue of secondhand smoke, and his testimony with regard to the fact that he had certain symptoms immediately after he receives the secondhand smoke and not at other times is his perception, and that's fair testimony. The conclusions that might be drawn from that will be up to me ultimately. How much longer do you anticipate? MR. SZYMKOWICZ: Probably about twenty minutes,

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Your Honor. THE COURT: Probably have to take a break. Got

staff, everybody else, so this would be a good time to take a break. Okay. Start as soon as everybody is here

and ready in the morning. MR. SZYMKOWICZ: What time you want us here? We

can be here whatever time you want. THE COURT: 9:00 o'clock probably best.

Invariably, there is half-a-dozen things I have got to do back there; so, you'll be here; if you want to leave stuff; want to lock it up, we'll lock it up. MR. FISHER: MR. GOECKE: Thank you, Your Honor. Thank you.

(Court adjourned for the day.)

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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 17, 2011, before the Honorable Albert W. Northrop, Associate Judge. I further certify that the page numbers one through 288 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 28th day of September, 2011.

_________________________________ DIANA L. WAKEFIELD, RMR Official Court Reporter

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