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

IN THE COURT OF SPECIAL APPEALS OF MARYLAND

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Number 2020 September Term, 2011

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DAVID S. SCHUMAN,

Appellant

v.

GREENBELT HOMES, INC., et al.

Appellees

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On Appeal from the Circuit Court for Prince George’s County

Albert W. Northrop, Associate Judge

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APPELLANT DAVID S. SCHUMAN’S RECORD EXTRACT

Volume IV of IV

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J.P. Szymkowicz Rita Turner John T. Szymkowicz 15600 Bald Eagle School Road SZYMKOWICZ & SZYMKOWICZ, LLP Brandywine, Maryland 20613 2300 N Street, N.W., Suite 5310 (410) 706-1129 (voice) Washington, DC 20037-1122 [email protected] (202) 862-8500 (voice) [email protected] [email protected]

Counsel for Appellant David S. Schuman

Record Extract Page 1438





M A S T E R I N D E X

August 17, 2011

PLF'S WITNESSES DIRECT CROSS REDIRECT RECROSS

Frank Gervasci 1-25 1-40 1-84/89 1-88

Carolyn Hammett 1-91 1-100 1-110 1-112

Kevin Hammett 1-114 1-114 1-121 1-131

Dory Ipolito 1-133 1-156 1-195 1-199

David Schuman 1-203

August 18, 2011

David Schuman 2-6 2-17 2-116

Gretchen Overdurff 2-122 2-168 2-177 2-181

James Repace 2-185

August 19, 3011

James Repace 3-7 3-61 3-130 3-134

DEFENSE WITNESSES

Alfred Munzer 3-137 3-163 3-194 3-195

August 22, 2011

Ronald Gots 4-32 4-103/125 4-130 4-143

Sylvia Lewis 4-150 4-175 4-209/227 4-223

August 23, 2011

Tokey Boswell 5-7 5-27 5-70 5-75

David Schuman 5-78 5-100

Darko Popovic 5-110 5-116

September 12, 2011

PLF'S REBUTTAL

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Curriculum Vitae James L. Repace

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• Assisted the Occupational Safety and Health Administration (OSHA) of the U.S.

Dept. of Labor with the drafting of its proposed rule to regulate SHS and indoor air in workplaces in 1994, and assisted OSHA with the planning and conduct of its protracted and contentious public hearing during 1994-1995.

• Authored a chapter on modeling secondhand smoke in a Stanford University textbook

on Exposure Analysis (Repace, 2006). Co-authored a chapter implicating cigars as a “major and increasing source of indoor air pollution.” in the National Cancer Institute Monograph on Cigar Smoking in the U.S.(Repace, Ott, and Klepeis, 1998). Authored two chapters on Modeling and Measurement of SHS in an IARC monograph on Passive Smoking (Repace, 1987a,b).

• For my contributions to the science and policy of SHS, In 1988 I received a Dr.

Luther L. Terry award from the U.S. Public Health Professional Association. In 1989, I was awarded the Surgeon General's Medallion from Dr. C. Everett Koop. In 1989 I also received recognition from the U.S. Dept. of Transportation for my contributions to its study of ETS on Aircraft and in 1991, from the U.S. Dept. of Health and Human Services Office of General Counsel for “extraordinary assistance” with workplace smoking ban litigation.

• In 1994, I shared the Secretary of Labor’s Excellence Award, and OSHA’s Impact

Award for my work on OSHA’s Indoor Air Proposal. In 1998, I received a Lifetime Achievement Award from the American Public Health Association, and in 2002, I received a William Cahan Distinguished Professor Award from the Flight Attendant Medical Research Institute, an Innovator Award from the Robert Wood Johnson Foundation, and was appointed Visiting Assistant Clinical Professor at the Tufts University School of Medicine. I am also a consultant to the Dept. of Civil and Environmental Engineering, Stanford University.

• I have been invited to lecture at numerous national and international scientific and

medical meetings, and at many U.S. and foreign universities. I have been invited to testify before the U.S. Senate and the U.S. House of Representatives. I have served as a consultant to the U.S. Department of Transportation, the World Health Organization, the National Research Council, the U.S. Department of Health & Human Services, and to the National Cancer Institute. I served on the Surgeon General's National Advisory Committee on Smoking and Health during the tenure of Dr. C. Everett Koop. I have served as a consultant to the governments of Australia, New Zealand, Hong Kong, Canada, Chile, Ireland, The United Kingdom, The Netherlands, Portugal, and Norway, as well as to numerous state and provincial governments in the U.S. and Canada.

• From 1979 to 1986, I worked at the U.S. Environmental Protection Agency on the

policy staff of the Assistant Administrator for Air and Radiation as a senior science policy analyst on issues relating to incineration of hazardous wastes on land and sea, ionizing and non-ionizing radiation, chemical hazards, and initiated EPA’s policy interest in indoor air pollution. I inspired and served in EPA’s Indoor Air Division From 1987 to 1998, defining its initial policy interest in SHS and sick buildings. I also served in the Exposure Assessment Group of EPA’s Office of Research and Development, working on exposure assessment of electromagnetic fields and internal radon dose from drinking water, in 1993. During 1994-95, I served on loan to the U.S. Department of Labor in the Health Standards Division of the Occupational



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Safety and Health Administration, working on OSHA’s proposed rule to regulate SHS.

• Prior to service at EPA, I worked for 15 years as a research physicist on problems

relating to radiation effects in military electronics and applied nuclear physics in oceanography at the Naval Research Laboratory in Washington, DC, and as a research associate in RCA’s David Sarnoff Research Center in Princeton, NJ, on development of solid state blue light, selenium vidicons, and high vacuum technology. As a health physicist at two New York hospitals, I performed in vivo and in vitro radiodiagnostic tests on patients, calibrated therapeutic and diagnostic x-ray and cobalt radiation equipment, and lectured to the medical staff on radiation physics.

EDUCATION Polytechnic Institute of Brooklyn, BSc. Physics, 1962; MSc. Physics 1968 Post-masters study in physics: University of Maryland 1969, Catholic University 1970-1972. Scientific Panel Membership Founding Member, Ad-hoc Interagency Committee on Indoor Air Quality 1979 Secretary, TT-7 Indoor Air Quality Committee, Air Pollution Control Association, 1982 Surgeon General’s National Advisory Panel on Smoking & Health, 1987-1989 World Health Organization Expert Advisory Panel on Tobacco or Health, 1987-Present Scientific Peer-Review Panel, California Tobacco-Related Disease Program 1994 – 2001 Ad-hoc peer reviewer, National Cancer Institute, Cancer Epidemiology Ad-hoc peer reviewer, California Tobacco Related Disease Program, Epidemiology panel Ad-hoc peer reviewer Flight Attendant Medical Research Inst., Epidemiology panel Associate Editor for Passive Smoking, Tobacco Control, 2000- 2003 Advisor, Tobacco Control Research & Policy Unit, Dept. of Community Medicine, University of Hong Kong, 2002- Other Memberships American Physical Society 1964 - 1979 Air Pollution Control Association 1979-1986 American Association for the Advancement of Science 1976 – 1990 American Public Health Association 1996 – International Society for Exposure Analysis 1997 - International Society of Indoor Air Quality and Climate 2002 - American Society of Heating, Refrigerating and Air Conditioning Engineers 2003- HONORS l967 RCA David Sarnoff Laboratory Graduate Assistantship Award l97l Sigma Xi, National Research Society l97l-l972 Thomas Edison Fellowship, Naval Research Laboratory l975 WHO's WHO In Maryland 1984 U.S. EPA Award for Exceptional Performance ($) 1988 Dr. Luther L. Terry Award, U.S. Public Health Professional Assn 1989 Surgeon General's Medallion, U.S. Public Health Service 1990 Certificate of Appreciation, U.S. Department of Transportation. 1991 Certificate of Appreciation, U.S. Dept of Health & Human Services 1994 OSHA IMPACT Award, U.S. Dept. of Labor (IAQ Team Award) 1994 U.S. Dept. of Labor Secretary’s Excellence Award (IAQ Team Award) 1995 U.S. OSHA Outstanding Performance Rating 1997 WHO’S WHO In the East 1998 Action on Smoking and Health Certificate of Appreciation 1998 Americans for Nonsmokers’ Rights Plaque of Appreciation 1998 Prince Georges’ County Civic Federation President’s Award



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1998 American Public Health Association, Lifetime Achievement Award 2002 Flight Attendant Medical Research Institute Distinguished Professor Award ($) 2002 Visiting Clinical Assistant Professor, Tufts University School of Medicine 2002 Robert Wood Johnson Foundation Innovator Award ($) 2003 American Lung Association of Maryland Distinguished Service Award 2003 Natl. Cancer Institute of Milan (Italy), Recognition for Excellence in Smoke Studies 2006 Maryland GASP President’s Award for International Tobacco Control Efforts PROFESSIONAL EXPERIENCE: 1963 Sr. Laboratory Technician Radioisotope Laboratory, Grasslands Hospital, N.Y. 1964 Jr. Physicist Dept. of Physics, New York City Dept. of Hospitals,

New York, NY 1965-1968 Research Associate Insulator Physics Group, RCA David Sarnoff Lab.,

Princeton, NJ 1969-1971 Research Physicist Ocean Science Division, Naval Research Lab,

Washington, DC 1971-1979 Research Physicist Electronics Division, Naval Research Laboratory,

Washington, DC 1979-1986 Policy Analyst Science Policy Staff ; Office of Air & Radiation,

U.S. EPA, Washington, DC 1986-1993 Policy Analyst Indoor Air Division, Office of Radiation & Indoor air;

U.S. EPA, Washington, DC 1993-1994 Physicist Exposure Assessment Group, Office of Research &

Development, U.S. EPA, Washington, DC 1994-1995 Policy Analyst Health Standards Division, OSHA, U.S. Dept. of Labor,

Washington, DC 1995-1997 Policy Analyst Indoor Air Division, Office of Radiation & Indoor air;

U.S. EPA, Washington, DC 1998- Scientific Consultant Repace Associates, Inc., Secondhand Smoke Consultants



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Pre-1998 Work Experience May 1995 to March 1998

U.S. ENVIRONMENTAL PROTECTION AGENCY, Washington, DC. Analysis Branch, Indoor Air Division, Office of Radiation & Indoor Air, Office of Air & Radiation

Senior technical staff, Indoor Air Division. Responsible for risk assessment, science policy analysis and technical program development of indoor pollutants. Major Accomplishments: independently developed for the first time a steady-state pharmacokinetic Monte Carlo model relating airborne nicotine and salivary cotinine to environmental tobacco smoke (ETS) workplace exposure parameters and lung cancer risk. Reviewed for EPA: Health Effects of Low Level Ozone; PM-10 Draft Criteria Document; EPA’s IAQ Diagnostic Manual; ASHRAE Handbook; EPA Carpet Brochure. Critically reviewed Congressional Research Service Passive Smoking Report & Participated in Workshop. For 1995, six scientific papers published. January 1994 to May 1995

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, Washington, D.C. Health Standards Directorate Office of Health Standards and Promulgation [On detail from U.S. EPA.]

Member, OSHA Indoor Air Quality Team. Helped draft language in proposed Indoor Air Quality (IAQ) rule and preamble to regulate environmental tobacco smoke (ETS) and other indoor pollutants [Indoor Air Quality, Proposed Rule 29 CFR 1910, 1915, 1926, 1928, 5 April 1994]. Provided expert consultation on ETS and IAQ hazard assessment, exposure assessment, health effects, and risk assessment issues. Served as OSHA panel member for IAQ Hearings from September 1994 - March 1995. Helped the Solicitor's Office select and prepare OSHA expert witnesses. Received "Outstanding" performance rating; awarded the U.S. Department of Labor Exceptional Achievement Award and OSHA's Excellence Award given to the Indoor Air Quality Team for development of the proposed IAQ rule. Independently developed for the first time a steady-state pharmacokinetic model relating salivary cotinine to ETS workplace exposure parameters and lung cancer risk.



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March. 1993 to January 1994

U.S. ENVIRONMENTAL PROTECTION AGENCY Washington, D.C. Exposure Assessment Group, Office of Health & Environmental Assessment, Office of Research and Development -- on detail.

On sabbatical as exposure analyst in the Exposure Assessment Methods Branch. Worked on exposure assessment of radon in drinking water, electromagnetic fields, pesticide re-entry, and real-time monitoring of environmental pollutants. Helped write draft EMF Guidance. Independently developed and published for the first time a steady-state pharmacokinetic model relating plasma and urinary cotinine to environmental tobacco smoke exposure, and a nicotine-based indoor air quality standard for environmental tobacco smoke (ETS) in the workplace. Published a calculation which showed that dietary nicotine must be insignificant compared to ETS as a source of plasma cotinine.

Sept.1986

to March 1993

U.S. ENVIRONMENTAL PROTECTION AGENCY*, Washington, D.C., Senior Analyst, Analysis Branch, Indoor Air Division, Office of Atmospheric & Indoor Air Programs, Office of Air & Radiation, Washington, DC 20460.

Senior technical staff, Indoor Air Program. Responsible for

risk assessment, science policy analysis and technical program development of indoor pollutants. Major independently developed projects: Wrote initial draft starting Agency risk assessment of environmental tobacco smoke (ETS), later taken over by Office of Research & Development. Conceived, co-edited, and co-authored 228-page EPA Compendium of Technical Issues on Environmental Tobacco Smoke, jointly with several Agencies of the U.S. Public Health Service: National Cancer Institute, National Heart, Lung, and Blood Institute, Office on Smoking & Health, Office of Disease Prevention & Health Promotion. Initiated an Interdisciplinary Handbook for the Prevention of Sick Buildings. Drafted two Indoor Air Facts public information pamphlets for the Indoor Air Division: Ventilation and Air Quality in Office Buildings (Indoor Air Facts # 3) and Environmental Tobacco Smoke (Indoor Air Facts # 5) .

Awarded U.S. Surgeon General's Medallion for my work on passive

smoking. Awarded Certificate of Appreciation for "significant contributions" as a member of the Department of Transportation interagency oversight committee (CEER Panel) on airliner cabin air quality. Awarded Certificate of Appreciation for "extraordinary assistance" as an expert witness to the Department of Health and Human Services in workplace smoking ban litigation. Reappointed as Scientific Consultant to the World Health Organisation Tobacco or Health Program (Geneva) for the 3rd time. My risk assessment model for lung cancer risk from passive smoking used as one of two to calculate risks of passive smoking on aircraft in U.S. Department of Transportation report on Airliner Cabin Air Quality. Authored two chapters for IARC monograph on Passive Smoking. Testified by invitation before the House Aviation Subcommittee Hearing on Airliner Cabin Air Quality on risk assessment of passive smoking for flight attendants, which contributed to 6-hr ban on smoking on passenger aircraft. Currently advising FAA on risks to cockpit crew. Assisted passive smoking effort at OSHA, passive smoking



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research at Univ. of California. Represented program on numerous occasions in a variety of presentations to national and international electronic and print media and audiences. Lectured at numerous national and international conferences and universities in the U.S. and abroad.

August 1982 to

September 1986

U.S. ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C. Science Policy Staff, Office of Policy Analysis and Review, Office of Air, Noise, and Radiation, Washington, DC 20460.

Member, policy staff of the Assistant Administrator for Air and Radiation. Responsible for scientific and policy review of air and radiation regulations, emphasis on cross-media problems such as incineration at sea, sewage sludge incineration. Had substantial input into risk assessment and proposed regulation of formaldehyde emissions from particle board and methanol-fueled vehicles. Made policy review of all proposed radiation regulations, including occupational radiation. guidance, radio-frequency guidance, low level radioactive waste, active and inactive mill tailings, and indoor radon guidance. Worked on special projects involving high-visibility air regulatory waiver applications. Made significant substantive contributions to Indoor Air Strategy paper for Agency Air Toxics Strategy; drafted and coordinated Agency response to Congressional Indoor Air Questions. Served as project officer on EPA/NAS Passive Smoking Study.

Independently developed quantitative risk assessment of environmental tobacco smoke . Testified on nonsmokers' lung cancer risk in both U.S. Senate and House of Representatives. Served as reviewer of 1984 Surgeon General's Report and as Alternate EPA Delegate to Surgeon General's National Advisory Committee on Smoking and Health. Served as Technical Advisor, National Academy of Sciences Committees on Airliner Cabin Air Quality and Passive Smoking; Consultant to World Health Organization on Airliner Cabin Air Quality, and to International Agency for Research on Cancer. Served as Executive Secretary of Indoor Air Quality Committee of APCA; chaired session on health effects.

August 1982 to

August 1984

U.S. ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C. Senior Staff, Office of Policy & Evaluation, Office of Air and Radiation, Washington, DC 20460.

On the policy staff of the Assistant Administrator. Reviewed proposed air and radiation regulations; engaged in regulatory policy development for hazardous air pollutant risk assessment. Major input: Air Toxics Strategy, Radionuclides, Benzene, Arsenic regulations; management analysis, Office of Radiation Programs. Developed initial guidance from air office to research office on indoor air pollution research strategy; worked on risks of hazardous waste incineration, unleaded gasoline, sewage sludge incineration, and passive smoking. Testified in House of Representatives Hearing on Indoor Air Pollution.

April l979

to

U.S. ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C. Senior Staff,



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August 1982 Office of Policy Analysis, Office of Air, Noise, and Radiation, Washington, DC 20460

On the policy staff of the Assistant Administrator. Worked independently or at the direction of the Office Director or the Assistant Administrator on a broad range of issues involving hazardous and criteria pollutants, radiation, and risk and exposure assessment. Responsibilities included discovery of long-range issues which might affect the agency; critique of technical, scientific, or policy work of other organizations; and liaison with a variety of governmental or private interests. Major achievements included initiating EPA's policy interest in indoor air pollution; becoming the Agency contact person for all substantive indoor air questions.

August 1969 to

April 1979

U.S. NAVAL RESEARCH LABORATORY Research Physicist, Solid State Devices Branch Electronics Division, Washington, DC 20375

Executed scientific research in nuclear and solid

state physics, materials science, computer technology, lasers, and semiconductor device structures. Produced research papers for presentation at national conferences and for publication in peer-reviewed journals, as well as negotiating and monitoring contracts for radiation-hardening research with governmental, university, and corporate research laboratories. Major achievements included discovery of negative interfacial charge layer in silicon-on-sapphire structure (patent disclosure), development of in-house laser scanning, automated capacitance-voltage and ion-current measurement, and a space-radiation dosimeter for space satellites. Served as the Branch delegate to the NRL laboratory safety committee. February 1968 to August 1969

U.S. NAVAL RESEARCH LABORATORY Research Physicist, Nuclear Oceanography Branch, Ocean Science Division, Washington, DC 20375

Executed scientific research in nuclear activation

analysis and computer programming. Major achievement was making precise measurements of the half-lives of several radionuclides in an investigation of the trace-element ratios of fossil and extant barnacles as part of a research program to determine the salinity of paleolithic seas. October 1964 to February 1968

DAVID SARNOFF RESEARCH CENTER, RCA LABORATORIES. Research Associate, Materials Research Laboratory, Princeton, NJ.

Supported basic and applied research into the

photo-magneto-electronic properties of insulators and vidicon applications. Primary responsibility was planning experiments and designing and constructing specialized apparatus. Major achievements were development of devices for flash vacuum



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evaporation; crystal growth under high vacuum from 77oK to 300o K; interferometric measurement of thin-film deposition; and deposition of molten alkali metals on vacuum-etched anthracene. These contributions helped make possible the first solid-state blue light. October 1963 to October 1964

FRANCIS DELAFIELD HOSPITAL, Jr. Physicist, Physics Department, New York City Department of Hospitals, New York, NY.

Responsibilities ranged from consulting to medical

staff in radiation physics, providing calibration services, radiation safety, and applied research. Major achievements were responsibility for monitoring doses to patients during surgical implantation of radium for treatment of uterine carcinoma; calibration of cobalt and x-ray therapy equipment; and derivation of isodose distribution curves for Co60 radiotherapy machines. The position was filled by competitive examination.



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June 1963 to October 1963

GRASSLANDS HOSPITAL Senior Laboratory Technician Laboratory for Nuclear Medicine Westchester County Department of Hospitals Valhalla, NY

Responsibilities included performing radio-diagnostic tests upon patients, assisting in medical research, and lecturing medical residents on mathematics and medical radiation physics. I operated with a high degree of autonomy, performing tests on patients involving the administration of radioactive drugs without supervision. I pipetted the solutions to the correct dosage, calibrated the instruments, and calculated the test results for presentation to the supervisory physician. PUBLICATIONS l. Repace JL. Precision Measurements of the Half-Lives of 38K, 49Ca, and 27Mg, RADIOCHIMICA ACTA l4: 46- (l970). 2. Meijer PHE and Repace JL. Phase Shifts of the Three-Dimensional Spherically Symmetrical Square Well Potential, AMERICAN JOURNAL OF PHYSICS 43: 428- (l975). 3. Repace JL. Radiation Induced Increase in Mobile Sodium in MOS Capacitors, IEEE TRANSACTIONS ON NUCLEAR SCIENCE NS-24: 2088- (l977). 4. Repace JL. The Effect of Ionizing Radiation on Mobile Ion Measurements in MOS Capacitors", IEEE TRANSACTIONS ON ELECTRON DEVICES ED-25: 492- (l978). 5. Repace JL and Goodman AM. The Effect of Process Variations on Interfacial and Radiation-Induced Charge in Silicon-on-Sapphire Capacitors. IEEE TRANSACTIONS ON ELECTRON DEVICES ED-25: 978- (l978). 6. Repace JL. Radiation Effects in Ion-Implanted SOS Capacitors with Negative Charge. IEEE TRANSACTIONS ON NUCLEAR SCIENCE NS-25: l450- (l978). 7. Tseng WF, Repace JL, Hughes HL, and Christou A. Silicon-on-Sapphire Films with Negative and Positive Interfacial Charges. THIN SOLID FILMS 82: 2l3- (l98l). 8. Repace JL, and Lowrey AH. Indoor Air Pollution, Tobacco Smoke, and Public Health. SCIENCE 208: 464-474 (l980). 9. Repace JL, Ott WR, and Wallace LA. Total Human Exposure to Air Pollution. Proceedings of the 73rd Annual Meeting of the Air Pollution Control Association, June 22, 27, l980, Montreal.



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10. Repace JL. The Problem of Passive Smoking. BULLETIN OF THE NEW YORK ACADEMY OF MEDICINE 57: 936-946 (l98l). l1. Repace JL, and Lowrey AH. Nonsmokers and Cigarette Smoke: A Modified Perception of Risk. SCIENCE 2l5: l97 (l982). l2. Repace JL, and Lowrey AH. Tobacco Smoke, Ventilation, and Indoor Air Quality. ASHRAE TRANSACTIONS 88: Part I, 895-914 (l982). l3. Repace JL. Indoor Air Pollution. ENVIRONMENT INTERNATIONAL 8: 21-36 (l982). 14. Repace JL, Seba DB, Lowrey AH, and Gregory TW. Effect of Negative Ion Generators on Ambient Tobacco Smoke. JOURNAL OF CLINICAL ECOLOGY 2: 90 (1984). 15. Repace JL, and Lowrey AH. Modeling Exposure of Nonsmokers To Ambient Tobacco Smoke", Proceedings of the 76th Annual Meeting of the Air Pollution Control Association, Atlanta, June 20-24, l983. 16. Repace JL. Tobacco Smoke and the Nonsmoker. Proceedings of The 5th World Conference on Smoking & Health, Winnipeg, Canada, July 10-15, l983. 17. Repace JL. Consistency of Research Data on Passive Smoking and Lung Cancer. J.L. Repace, THE LANCET (ii): 3 March l984, p. 506. 18. Repace JL. Effect of Ventilation on Passive Smoking in a model Workplace", Proceedings of an Engineering Foundation Conference on Management of Atmospheres in Tightly Enclosed Spaces, Santa Barbara, Oct. 17-21, 1983, American Society of Heating, Refrigerating, and Air Conditioning Engineers, Atlanta, 1984. 19. Repace JL, and Lowrey AH. A Quantitative Estimate of Nonsmokers' Lung Cancer Risk From Passive Smoking. ENVIRONMENT INTERNATIONAL 11: 3-22 (1985). 20. Repace JL, and Lowrey AH. An Indoor Air Quality Standard For Ambient Tobacco Smoke based on Carcinogenic risk. N.Y. STATE JOURNAL OF MEDICINE: 85: 381-383 (1985). 21. Repace JL. Risks of Passive Smoking. Chapter 1, in To Breathe Freely, Risk, Consent, and Air, Maryland Studies in Public Philosophy, Edited by M. Gibson, Center for Philosophy and Public Policy, University of Maryland; Rowman and Allenheld, Totowa, N.J., 1985. 22. Repace JL. Passive Smoking has no place in the workplace (Editorial) CANADIAN MEDICAL ASSOCIATION JOURNAL, 133: 737-738, Oct 15, 1985. 23. Repace JL, and Lowrey AH. A Rebuttal To Criticism of 'A Quantitive Estimate of Nonsmokers' Lung Cancer Risk From Passive Smoking'. ENVIRONMENT INTERNATIONAL 12: 33-38 (1985).



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24. Repace JL, and Lowrey AH. A Rebuttal To Criticism of the Phenomenological Model of Nonsmokers' Lung Cancer Risk from Passive Smoking. ENVIRONMENTAL CARCINOGENESIS REVIEWS (Journal of Environmental Science and Health), pt C(4) 225-235 (1986). 25. Repace JL, and Lowrey AH. Environmental Tobacco Smoke and Indoor Air Quality in Modern Office Work Environments," (Editorial) JOURNAL OF OCCUPATIONAL MEDICINE, 29: 628-629 (1987). 26. Repace JL, and Lowrey AH. Predicting the Lung Cancer Risk From Domestic Passive Smoking. (letter) AMERICAN REVIEW OF RESPIRATORY DISEASE, 136: 1308 (1987). 27. Repace JL. Indoor concentrations of environmental tobacco smoke: models dealing with effects of ventilation and room size", Ch. 3, IARC Scientific Publications no.81, Environmental Carcinogens--Selected Methods of Analysis--Volume 9 Passive Smoking; I.K. O'Neill, K.D. Brunnemann, B. Dodet & D. Hoffmann, International Agency for Research on Cancer, World, Health Organization, United Nations Environment Programme, Lyon, France, (1987). 28. Repace JL. Indoor concentrations of environmental tobacco smoke: field surveys". J.L.Repace, Ch. 10, IARC Scientific Publications no. 81, Environmental Carcinogens--Selected Methods of Analysis--Volume 9 Passive Smoking; I.K. O'Neill, K.D. Brunnemann, B. Dodet & D. Hoffman, International Agency for Research on Cancer, World, Health Organization, United Nations Environment Programme, Lyon, France, (1987). 29. Repace JL, and Lowrey AH. Comment on 'Estimation of Effect of Environmental Tobacco SMoke on Air Quality within Passenger Cabins of Commercial Aircraft'". (letter) ENVIRONMENTAL SCIENCE AND TECHNOLOGY 22: 1238 (1988). 29A. Repace JL, Lowrey AH. Modeling and measurement of aerosol and nicotine from environmental tobacco smoke", Proceedings of the Annual meeting of the American Association for Aerosol Research, Chapel Hill, NC, October 10-13, 1988. 30. Repace JL. Passive smoking is risky. JOURNAL OF THE AMERICAN MEDICAL WOMEN'S ASSOCIATION 44: 50-54 (1989). 31. Repace JL, and Lowrey AH. Environmental tobacco smoke in the cabins of commercial aircraft." (Letter) JOURNAL OF THE NATIONAL CANCER INSTITUTE 81: 1425-1426 (1989). 32. Repace JL. Workplace restrictions on passive smoking: justification on the basis of cancer risk." In: Harper, JP, Ed., Transactions of an international specialty conference (Air Pollution Control Association)-- Combustion processes and quality of the indoor environment. Niagara Falls, NY pp. 333-347 (1989). 33. Repace JL, and Lowrey AH. Rebuttal to Lee and Katzenstein’s commentary on passive smoking risk. (Letter) ENVIRONMENT INTERNATIONAL 16:182-183 (1990).



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34. Repace JL, and Lowrey AH. Risk Assessment Methodologies in passive smoking-induced lung cancer. RISK ANALYSIS, 10: 27-37, (1990). 35. Repace JL, and Lowrey AH. Observational vs extrapolative models in estimating mortality from passive smoking. (Letter) J.L. Repace and A.H. Lowrey, ENVIRONMENT INTERNATIONAL 17: 386-387 (1991). 36. Repace JL. "Workshop Comments on Benefits and drawbacks of natural and mechanical ventilation systems," p. 72. "Workshop Comments on How to design low energy buildings and avoid health and comfort problems, p. 66-67. "Workshop Comments on The dramatic changes in recommended outdoor air rates - what are the rational motives and consequences," p. 132-133. In: Healthy Buildings '88, vol 4. Conclusions and recommendations for healthier buildings. B. Berglund, T. Lindvall, Eds. Swedish Council for Building Research, Stockholm, Sweden, June 1991. 37. Repace JL. Are Indoor Air Quality Standards Needed? p. 153-159. In: Healthy Buildings '88, vol 4. Conclusions and recommendations for healthier buildings. B. Berglund, T. Lindvall, Eds. Swedish Council for Building Research, Stockholm, Sweden, June 1991. 38. Repace JL, and Lowrey AH. Does ventilation really control tobacco smoke in offices? ENVIRONMENT INTERNATIONAL 18: 311-314 (1992). 39. Repace JL. Is the dose -response curve between tobacco smoke exposure and lung cancer really linear from active smoking to passive smoking?" (letter) ENVIRONMENT INTERNATIONAL 18: 427-429 (1992). 40. Repace JL, and Lowrey AH. Issues and answers on passive smoking in the workplace: rebutting tobacco industry arguments. TOBACCO CONTROL, 1: 208-219 (1992). 41. Repace JL, and Lowrey AH. Passive Smoking and the Tobacco Industry." (Letter) TOBACCO CONTROL, 2: 56 (1993). 42. Lowrey AH, Kantor S, and Repace JL. Indoor and Outdoor Respirable Suspended Particulates in Budapest, Hungary. Proceedings of the 6th International Conference on Indoor Air Pollution, Helsinki, Finland, July 4-8, 1993. 43. Repace JL, and Lowrey AH. An enforceable indoor air quality standard for environmental tobacco smoke in the workplace. RISK ANALYSIS, 13:463-475 (1993). 44. Repace JL. Tobacco Smoke Pollution." J.L. Repace, Chapter 7 in Nicotine Addiction, Principles and Management, T. Orleans and J. Slade, Ed.s, Oxford University Press, New York, 1993.



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45. Repace JL, A Book Review of The Chemistry of Environmental Tobacco Smoke: Composition & Measurement. by MR Guerin, RA Jenkins, and BA Tomkins. TOBACCO CONTROL 2: 339-340 (1993). 46. Repace JL. Dietary nicotine won't mislead on passive smoking ... BRITISH MEDICAL JOURNAL, 308/6920 (1 Jan) 61-62 (1994) 47. Repace JL. Risk management of passive smoking at home and at work. ST. LOUIS UNIVERSITY PUBLIC LAW REVIEW, XIII (2) 763-785 (1994). 48. Shopland DR, Hartman AM, Repace JL, and Lynn WR. Smoking behavior, workplace policies, and public opinion regarding smoking restrictions in Maryland. MARYLAND MEDICAL JOURNAL 44: 977-982 (1995). 49. Lowrey AH, Wallace LA, Kantor S, and Repace JL. Concentrations of combustion particulates in outdoor and indoor environments. Chapter 10 in Combustion Efficiency and Air Quality, T. Vidóczy and I. Hargittai, Eds. Plenum Publishers. N.Y. pp 175-211 (1995). 50. Repace JL, and Lowrey AH. A rebuttal to tobacco industry criticism of an enforceable indoor air quality standard for environmental tobacco smoke... . RISK ANALYSIS 15: 7-13 (1995). 51. Repace JL. The Clean Air Case Against Smoking. In: Round Table: “Smokers: why do they start and continue?” WORLD HEALTH FORUM, 16, # 1: 13-16, January 1995. 52. Repace JL. Tobacco, history, and the AMA. (Letter) THE LANCET, 19 August 1995. 53. Repace JL. Indoor air pollution and multiple chemical sensitivity. Proc. Occupational Safety & Health ‘95 Conference and Trade Show, Toronto, Ontario, Oct. 2-4, 1995. 54. Repace JL, and Lowrey AH. Environmental Tobacco Smoke: Allegations of Scientific Misconduct. ENVIRONMENT INTERNATIONAL (Letter) Environment International 22:268-270 (1996). 55. Repace JL, Jinot J, Bayard S, Emmons K, and Hammond SK. Air nicotine and saliva cotinine as indicators of passive smoking exposure and risk. Risk Analysis 18: 71-83 (1998). j 56. Repace JL, Ott WR, and Klepeis NE. Indoor Air Pollution from Cigar Smoke. Chapter 5, In Smoking and Tobacco Control Monograph 9. Cigars - Health Effects and Trends. National Institutes of Health, National Cancer Institute, Bethesda, MD (1998). 57. Klepeis NE, Ott WR, and Repace JL. The effect of cigar smoking on indoor levels of carbon monoxide and particles. Journal of Exposure Analysis and Environmental Epidemiology 9:1-14 (1999). 58. Repace JL. Banning outdoor smoking is scientifically justifiable. (Invited review) Tobacco Control 9:98 (2000).



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59. Baker F, Dye JT, Stuart R, Ainsworth MA, Crammer C, Thun M, Hoffmann D, Repace J, Henningfield J, Slade J, Pinney J, Shanks T, Burns B, Connally G, Shopland D. Cigar smoking health risks: state of the science. JAMA 284:735-740 (2000). 60. Johnson KC and Repace JL. Lung cancer and passive smoking - Turning over the wrong stone. BMJ 321 (7270) 1221 (2000). 61. Mannino DM, Moorman JE, Kingsley B, Rose D, and Repace J. Health effects related to environmental tobacco smoke exposure in children in the United States. Data from the Third National Health & Nutrition Examination Survey. Archives of Pediatric & Adolescent Medicine 155:36-41 (2001). 62. Muggli ME, Forster JL, Hurt RD, and Repace JL. The smoke you don’t see: uncovering tobacco industry scientific strategies aimed against environmental tobacco smoke policies. American Journal of Public Health, 91: 1419-1423 (2001). 63. Mannino DM, Caraballo R, Benowitz N, and Repace J. Predictors of cotinine levels in US children - data from the third national health and nutrition examination survey. Chest 120:718-724 (2001). 64. Repace JL. Effects of passive smoking on coronary circulation. (letter) JAMA. 287 #3, 316-317, January 16, 2002. 65. Mannino DM, Albalak R, Grosse S, Repace J. Second-hand smoke exposure and blood lead levels in U.S. children. Epidemiology 14: 719-727 (2003). 66. Repace JL. Flying the Smoky Skies: Secondhand Smoke Exposure of Flight Attendants. Tobacco Control 13(Suppl 1):i8-i19 (2004). 67. Muggli ME, Forster JL, Hurt RD, and Repace JL. The Tobacco Industry’s Political Efforts to Derail the EPA Report on ETS. Am J Prev Med 26(2):167–177 (2004). 68. Repace JL. Respirable Particles and Carcinogens in the Air of Delaware Hospitality Venues Before and After a Smoking Ban. Journal of Occupational and Environmental Medicine, 46:887-905 (2004). 69. Travers MJ, KM Cummings, A Hyland, J Repace, S Babb, T Pechacek, PhD, R Caraballo. Indoor Air Quality in Hospitality Venues Before and After Implementation of a Clean Indoor Air Law — Western New York, 2003. MMWR Vol. 53 / No. 44 1038-104, November 12, 2004. 70. Hyde JN, Brugge D, Repace J, Rand W. Assessment of sources of second hand smoke exposure in a putatively non-exposed population. Archives of Environmental Health, 59: 553-557 (2004).



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71. Repace JL. Controlling Tobacco Smoke Pollution. Technical Feature, ASHRAE IAQ Applications: 6, #3, 11-15 (2005). 72. Mulcahy M, Evans DS, Hammond SK, Repace JL and Byrne M. Secondhand smoke exposure and risk following the Irish smoking ban: an assessment of salivary cotinine concentrations in hotel workers and air nicotine levels in bars. Tobacco Control 14: 384-388 (2005). 73. Repace J. Reply on Environmental Tobacco Smoke (ETS) Exposure in Florence Hospitality Venues Before and After the Smoking Ban in Italy. (Letter). JOEM 47:1210 (2005). 74. Repace JL, Al-Delaimy WK, Bernert JT. Correlating Atmospheric and Biological Markers in Studies of Secondhand Tobacco Smoke Exposure and Dose in Children and Adults. JOEM 48: 181-194 (2006). 75. Leavell NR, Muggli ME, Hurt RD, and Repace JL. Blowing Smoke – British American Tobacco's Air Filtration Scheme and the UK Public Places Charter on Smoking. BMJ 332;227-229 (2006). 76. Hedley AJ, McGhee SM, Repace JL, Wong L-C, Yu YSM, Wong T-W, Lam T-H. Risks for heart disease and lung cancer from passive smoking by workers in the catering industry. Toxicological Sciences 90(2), 539–548 (2006). 77. Repace JL. and Johnson KC. Can Displacement Ventilation Control Secondhand ETS? Technical Feature, ASHRAE IAQ Applications, 7: 1-6 (Fall, 2006). 78. Hyde J, Brugge D, Repace J, Hamlett J, Rand W, and Haley N. Worker Exposure to Environmental Tobacco Smoke in Smoking-Restricted Restaurants and Bars. Ch. 14, In: Passive Smoking and Health Research. ISBN: 1-60021-382-0, Editor: N.A. Jeorgensen, pp. - © 2006 Nova Science Publishers, Inc. 79. Repace J, Hughes E, and Benowitz N. Exposure to Secondhand Smoke Air Pollution Assessed from Bar Patrons’ Urine Cotinine. Nicotine and Tobacco Research 8: 701-711 (2006). 80. Repace JL, Hyde JN, Brugge D. Air Pollution in Boston Bars Before and After a Smoking Ban. Open Acess, on-line journal: <http://www.biomedcentral.com/1471-2458/6/266>, BMC Public Health 2006, 6:266 (27 Oct 2006). 81. Repace JL. Exposure to Secondhand Smoke. Chapter 9, In: Exposure Analysis, W Ott, A Steinemann, and L Wallace, Eds. CRC Press (2007). 82. Bauer U, Juster H, Hyland A, Farrelly M, Engelen M, Weitzenkamp D, Repace J, Babb, S. Reduced Secondhand Smoke Exposure After Implementation of a Comprehensive Statewide Smoking Ban — New York, June 26, 2003–June 30, 2004.



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MMWR 56, No. 28: 705-706 (2007). 83. Repace JL. Book Chapter: How Social Policy Can Foster Advances in Addiction Treatment: Tobacco Smoke Pollution and the Hospitality Industry as an Example. In: Drug Addiction Treatment in the 21st Century: Science and Policy Issues. JE Henningfield, PB Santora, and WK Bickel, Eds. Johns Hopkins University Press. (2007). 84. Lee, K., Hahn, E.J., Okoli, C.T.C., Repace, J., Troutman, A. Differential impact of smoke-free laws on indoor air quality. Journal of Environmental Health 70:24-70 (2008). 85. Repace JL. Benefits of smoke-free regulations in outdoor settings: beaches, golf courses, parks, patios, and in motor vehicles. William Mitchell Law Review 34(4):1621-1638 (2008). 86. Repace JL. Secondhand Smoke in Pennsylvania Casinos: A Study of Nonsmokers’ Exposure, Dose, and Risk. American Journal of Public Health 99: 1478–1485 (2009). 87. Jiang RT, Cheng K-C, Acevedo-Bolton V, Klepeis NE, Repace JL, Ott WR, and Hildemann LM. Measurement of Fine Particles and Smoking Activity in a Statewide Survey of 36 California Indian Casinos. J. Exposure Sci & Env. Epidemiol. (2010). 1-11 (online version). 88. Repace JL, Jiang RT, Cheng K-C, Acevedo-Bolton V, Klepeis NE, Ott WR, and Hildemann LM. Fine Particle and Secondhand Smoke Air Pollution Exposures and Risks Inside 66 US Casinos. Submitted to Environmental Research.

REPORTS (1). Repace JL. The Cigarette Wars. Pro & Con: The verdict of science: secondhand smoke kills. <Intellectual Capitol.com> Vol. 3 Issue 14 April 2-8, 1998. (2). Repace JL, Kawachi I, and Glantz SA. Fact Sheet on Secondhand Smoke.. 20-page Internet Review Paper prepared for GlobaLink, a membership-only internet service of the UICC Union Internationale Contre le Cancer (International Union Against Cancer) Geneva, Suisse. 23 February 1999. <www.repace.com>. (3). Repace JL. Can Ventilation Control Secondhand Smoke in the Hospitality Industry? Prepared for the California Cancer Registry, Tobacco Control Section, California Department of Health. April 6, 2000: www.repace.com ; see also: www.dhs.ca.gov/tobacco/documents/FedOHSHAets.pdf. (4). Hedley AJ, McGhee SM, Repace JL, Wong TW, Yu MYS, Chan AYW, Lam TH, Lo PCK, Tsang M, Wong LC, Chan ALN, Ng ESL, and Janghorbani M. Passive smoking and risks for heart disease and cancer in Hong Kong catering workers 2001. Report # 8, Hong Kong Council on Smoking and Health. http://www.info.gov.hk/hkcosh/download/en_download01.htm#pointA.



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(5). Repace JL. 2003. An Air Quality Survey of Respirable Particles and Particulate Carcinogens in Northern Delaware Hospitality Venues Before and After a Smoking Ban. Report for the IMPACT Delaware Tobacco Prevention Coalition. www.repace.com. (6). Repace JL. 2003. A Killer on the Loose. An Action on Smoking and Health Special Investigation into the threat of passive smoking in the U.K. workforce. http://www.ash.org.uk ; www.repace.com. (7). Repace JL. 2003. Passive Smoking Risks: From Pollution, Not Bias. (2 December 2003) BMJ Online, Rapid Responses; http://bmj.bmjjournals.com/cgi/eletters/327/7413/503-a#37052. (8). Repace JL. Cotinine, Questionnaires, and Passive Smoking Risks. BMJ Online, Rapid Responses; http://bmj.bmjjournals.com/cgi/eletters/329/7471/918-b (15 October 2004). (9). Repace, J.L.; Homer, M. Laramie Wyoming Bar Patron Cotinine Study: A Report to the Wyoming Department of Health, Substance Abuse Division. Laramie, WY: University of Wyoming, Wyoming Survey & Analysis Center. WYSAC Technical Report, No. CHES-517. URL: <http://www.uwyo.edu/wysac/HealthEducation/Tobacco/docs/Laramie,%20Wyoming%20Ba r%20Patron%20Cotinine%20Study.pdf> (10). Repace JL. Enstrom & Kabat's Exposure Assessment Flawed. BMJ Online, Rapid Responses;25 January 2006. http://bmj.bmjjournals.com/cgi/eletters/326/7398/1057#126886 (11). Repace JL. Air Quality in Virginia's Hospitality Industry. A report prepared for Virginians for a Healthy Future, January 2006. (12). Repace JL. Cotinine and risk. A reply to Mr. Cody. 28 September 2006. BMJ Online, Rapid Responses; http://bmj.com/cgi/eletters/326/7398/1057#142893. (13). Repace JL. SECONDHAND SMOKE AIR POLLUTION IN PENNSYLVANIA HOSPITALITY VENUES. Prepared for The Pennsylvania Alliance to Control Tobacco American Lung Association of Pennsylvania, November 24, 2006. (14). Repace JL. SECONDHAND SMOKE IN PENNSYLVANIA CASINOS A STUDY OF NONSMOKERS’ EXPOSURE AND DOSE. Prepared for The Pennsylvania Alliance to Control Tobacco, American Lung Association of Pennsylvania, September 27, 2007. Conference Presentations and Posters: 1. Mulcahy, M., Repace, J.L. (2002) Passive Smoking Exposure and Risk for Irish Bar Staff, In, Proceedings the 9th International Conference on Indoor



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Air Quality and Climate. Monterey, CA June 30-July 5, 2002. Volume II (144-149). 2. Hedley AJ, McGhee SM, Repace JL (presenter), et al. (Poster) ANALYSIS OF DOSE, EXPOSURE, AND RISK FOR HONG KONG CATERING WORKERS EXPOSED TO SECONDHAND SMOKE AT WORK ONLY. Presented at joint 12th Conference of the International Society of Exposure Analysis (ISEA) and the 14th Conference of the International Society for Environmental Epidemiology, August 11-15, 2002, Vancouver, BC Canada. 3. Repace JL, Ott WR, Klepeis NE, and Wallace LA. Predicting environmental tobacco smoke concentrations in California homes. Paper 5E-04p, Session: Environmental tobacco smoke: determining concencentrations & assessing exposures. 10th Annual Conference of the International Society of Exposure Analysis, Oct 24-27, 2000, Asilomar, Monterey, CA. 4. Repace JL. Poster, Secondhand Smoke in the Hospitality Industry: Poster. Indoor Air Quality Before & After a Smoking Ban, 13th Annual Conference, International Society for Exposure Analysis, Stresa, Italy, 21-25 September 2003. 5. Ott WR, Repace JL. Poster. Modeling and Measuring Indoor Air Pollution from Multiple Cigarettes Smoked in Residential Settings. International Society for Exposure Analysis, Stresa, Italy, 21-25 September 2003. 6. Indoor and outdoor carcinogen pollution on a cruise ship. 14th Annual Conference of the International Society of Exposure Analysis, Philadelphia, PA. 17-21 October 2004. Supported by the Flight Attendant Medical Research Institute Distinguished Professor Award. 7. Hyland A, Travers M, Repace J. Seven City Air Monitoring Study (7CAM), March-April 2004. Washington, DC: Rosewell Park Cancer Institute Report, 2004. 8. Rosetta Stone Equations for Predicting Atmospheric & Biomarkers for Secondhand Smoke; Outdoor Air Pollution From Secondhand Smoke; The Bismarck, ND Air Quality Study. 4th Annual meeting of the Flight Attendant Medical Research Institute, Miami Beach, FL May 11-13 2005

9. 1 November 2005. Conference presentation:: “Displacement Ventilation Fails to Control Secondhand Smoke: a 3 Pub Air Quality Study.” Indoor Air Pollution, platform session, abstract in Proceedings of the 15th Annual International Society for Exposure Analysis Conference October 30 - November 3, 2005 Tucson, Arizona. 10. 1 November 2005. Coauthor on conference presentation: K. Lee, C.T.C. Okoli, J.L. Repace and E.J. Hahn, “Impact of smoke-free ordinance on indoor particulate levels” presented in the 15th International Society of Exposure Analysis, Oct 30-Nov 3, 2005, Tucson, Arizona, USA. 11. 5 September 2006. Oral Conference Presentation: Secondhand tobacco smoker exposure and dose in Boston Bars and Bartenders. ISEE/ISEA



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International Conference on Environmental Epidemiology and Exposure, Paris, France, Sept. 2 -6, 2006. 13. 5 September 2006. Poster Conference Presentation: Evaluating and inter-relating real-time airborne particle monitoring instruments. NE Klepeis, WR Ott, LA Wallace, JL Repace & P Switzer. ISEE/ISEA International Conference on Environmental Epidemiology and Exposure, Paris, France, Sept. 2 -6, 2006. 14. Presented Poster: Secondhand smoke in casinos: You bet your life. 2007 National Conference on Tobacco or Health, Minneapolis MN, October 24–26. Presentations 1979 "Total Exposure to Air Pollution", National Commission on Air Quality, Washington, D.C., l2 July l979. "Health Effects of Tobacco Smoke on Nonsmokers", National Security Agency, Ft. George G. Meade, Maryland, 25 April l979. l980 ""Indoor Air Pollution and Energy Conservation", guest lecturer, Catholic University, Dept. of Mechanical Engineering, course on Environmental Consequences of Energy Production, Washington, D. C., l8 September l980. "Regulation of Hazardous Substances in the Environment: Indoor Air Pollution", New York Academy of Science, New York, N. Y., l2 November l980. "Total Human Exposure to Air Pollution", presented at the 73rd Annual Meeting of the Air Pollution Control Association, Montreal, Canada, 23-27 June l980. 1981 "Office Hazards", National Public Radio Interview, Washington, D.C., 4 February l98l. "Indoor Air Pollution", President’s Council on Environmental Quality, Washington, D. C., 5 February l98l. "Tobacco Smoke and the Nonsmoker", Symposium of Health Aspects of Indoor Air Pollution, the New York Academy of Medicine, New York, N. Y. 28-29 May l98l. Chairman, Indoor Air Quality Session, TT-7 Indoor Air Quality Committee, 74th Annual Meeting, Air Pollution Control Association, Philadelphia, Pa., 22-26 June l98l. "An Approach To A National Indoor Air Pollution Policy", International Symposium on Indoor Air Pollution, Health, and Energy Conservation, Amherst, Mass., University of Massachusetts, l3-l6 October l98l.



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Panelist, "The Changing Cigarette", National Conference on Smoking or Health, The American Cancer Society, Waldorf Astoria Hotel, New York, N. Y. l8-20 November l98l. "Indoor Air Pollution Transport", Guest Lecturer, Dept. of Mechanical Engineering, course on Environmental Effect of Energy Production, Catholic University of America, Washington, D. C., 30 November l98l. "Regulation of Indoor Air Pollution, Past & Future", Seminar on Indoor Air Pollution, Argonne National Laboratory, Argonne, Illinois, 5 December l98l 1982 Co-Chairman ASHRAE Symposium on Ventilation and Indoor Air Quality, and Presenter: "Tobacco Smoke, Ventilation, and Indoor Air Quality", Paper HO-82-6, #2, ASHRAE-APCA Symposium, ASHRAE-ARI l982 Semiannual Meeting, Houston, Texas, 24-28 January l982. Interview on Passive Smoking, Canadian Broadcasting Company Television Network, Broadcast Oct. l, l982. Panelist, Working Group on Smoking, Heart, Lung and Blood Diseases, National Institutes of Health, Bethesda, MD, 10 June, 19 Oct.1982. Invited Speaker, Seminar on Indoor Air Pollution, National Institute of Building Sciences, National Association of Home Builders, Washington, D.C. 20 June 1982. Chairman, Indoor Air Quality Poster Session, 75th Annual Meeting of the Air Pollution Control Association, New Orleans, LA, 22 June 1982. 1983 Mention of my work in “The Menace of Indoor Pollution,” by Lowell Ponte, Readers’ Digest, 144-148, Feb. 1983. Interview on Involuntary Smoking, "Health Beat", (Nationally Syndicated) Metromedia TV, broadcast nationally March 25-28 l983. Interview, Indoor Air Pollution, CBS-TV (New York) 6 O'Clock News, broadcast l8 May 1983. CoChairman, Session 9, Indoor Air Pollutants -- Health Effects; 76th Annual Meeting of the Air Pollution Control Association, Atlanta, GA, 20 June l983. Guest Speaker, General Interest Session on Indoor Air Pollution, "Indoor Air Policy Issues", 76th Meeting of the Air Pollution Control Association, Atlanta, 23 June l983. Presented Paper 83-64.2, "Modeling Exposure of Nonsmokers to Ambient Tobacco Smoke" Session 64, Indoor Air Quality Characterizations of Concentrations, Emissions, and Human Exposure, 76th Annual Meeting of the Air Pollution Control Association, Atlanta GA, 23 June l983. Invited Lecturer, Session on Nonsmokers' Air Environment, 5th World Conference on Smoking & Health, Winnipeg, Canada, July l3, l983. Invited testimony before the House Subcomittee on Energy Development and Applications and the Subcommittee on Agriculture Research and Environment of the Committee on Science &



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Technology, U.S. House of Representatives, Washington, DC., on Indoor Air Pollution from tobacco smoke. August 3, 1983. Guest Lecturer, Conference on "Management of Atmosphere in Tightly Enclosed Spaces", Oct 16-21, l983, Santa Barbara, California, "Tobacco Smoke and Ventilation." Conference Co-sponsored by Engineering Foundation, American Society of Heating, Refrigerating and Aircondioning Engineers (ASHRAE), U.S. EPA, and U.S. Dept. of Energy. Participant, Workshop on Evaluation of Personal Monitoring Equipment for Personal Exposure Assessment, organized by the Harvard School of Public Health and the Energy and Environmental Policy Center, co-sponsored by the Electric Power Research Institute and the Gas Research Institute, Harvard Univ., Cambridge Mass., 5-7 December 1983. Participant, International Conference on Assessment of Passive Smoking, sponsored by the International Agency for Research on Cancer, at the American Health Foundation, Valhalla, NY. 8-9 December 1983. 1984 "Indoor Air Pollution From Tobacco Smoke", presented at the monthly meeting of the Federal Safety and Health Council of Metropolitan Washington, J. Edgar Hoover Bldg., 13 January l984, Washington, DC. Reviewer, 1983 Surgeon General's Report on Health Consequences of Smoking, Cardiovascular Disease. Office on Smoking and Health, U.S. Dept. HHS, Rockville, MD 27 February 1984. "Analysis of the American Cancer Society Study of Passive Smoking and Lung Cancer", presented at a meeting of the Interagency Technical Working Committee on Smoking, Heart, Lung, and Blood Diseases, NIH, Bethesda, MD, 28 February 1984. "Indoor Air Pollution", guest lecturer, Dept. of Architecture, Catholic University of America, Washington, DC, 17 April 1984. "Workplace Passive Smoking", invited talk presented at the National Safety Management Society 1984 Conference, Hotel Sheraton-Washington, Washington DC, April 23-26, 1984. "Involuntary Smoking, Fact and Fiction", invited talk presented at Clinical Public Health Grand Rounds, Health Resources and Services Administration, U.S. Dept. of Health and Human Services, Rockville, MD, 9 May 1984. TV Panelist: Passive Smoking; The Freeman Report, Cable News Network, Nationally Broadcast live 10-11 PM, Washington, DC, 23 May 1984. Interview on Passive Smoking, "All Things Considered," with Daniel Zwerdling, Nationally Broadcast 1 June 1984, WETA, Washington, DC. "Passive Smoking", invited talk presented at the 19th Annual Meeting of the U.S. Public Health Service Professional Association, Scottsdale, Arizona, 4-8 June 1984. "A Proposed Indoor Air Quality Standard for Ambient Tobacco Smoke": paper presented at 3rd International Conference on Indoor Air Quality and Indoor Climate, Stockholm, 20-24 August 1984.



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Interview on Indoor Air Pollution: RKO General Radio: "Equal Time", Nationally Syndicated Public Affairs Show: 17 September 1984. Interview: "EPA Passive Smoking Study" CBS TV Evening News With Dan Rather, (National) 26 September 1984. Interview: "EPA Study Links Deaths of Nonsmokers to Cigarette", by Irvin Molotsky, The New York Times, November 3, 1984. Interview on Passive Smoking, CANADA AM (National), Toronto, 14 Sept. 1984. Interview: "Tobacco tar fatal for nonsmokers, doctor says", The Globe and Mail, P.M6, Toronto, 15 September 1984. Interview: "Second-hand tobacco smoke may kill 500 Canadians a year, expert claims." A.12, The Toronto Star, Toronto, 15 September 1984. "Risks of Passive Smoking" Guest Lecturer at Pierce Foundation Laboratory, Yale University, New Haven, CT, 17 December 1984. Interview on Passive Smoking and Indoor Air Pollution, Newsweek, 31 December 1984. 1985 Interview on passive smoking, INN News (Cable TV, Syndicated) 10 Jan 1985. Mention of my work: N.Y. Times Editorial: "Making Cigarettes Pay", 11 January 1985. Invited Talk on "Risk Assessment of Passive Smoking", Interagency Technical Working Committee on Smoking, Heart, Lung, and Blood Diseases, National Institutes of Health, 16 January 1985. Interview: "Smokers' smoke is risk to all -- study", p.1, USA TODAY 31 January 1985. Interview on Risk Assessment of Passive Smoking: "Scientist says tobacco smoke is one of deadliest indoor air pollutants", United Press International wire service story, 4 February 1985. Interview on Risk Assessment of Passive Smoking: GOOD MORNING AMERICA, ABC TV Network, 5 February 1985. Interview on Risk Assessment of Passive Smoking: Cable News Network, 5 February 1985. Invited Talk on "Risk Assessment of Passive Smoking", Interagency Task Force on Environmental Lung Cancer, U.S.EPA, Washington, D.C. 7 February 1985. Panelist, Special Study Section for Review of National Cancer Institute Grant Applications (RFA-84-CA-14) for Passive Smoking Research, Arlington VA. 15 March 1985. Telephonic testimony re: Equal Employment Opportunity (passive smoking in the workplace) Complaint of Ernest Stiltner vs. U.S. Department of Commerce, National Oceanic and Atmospheric Administration Boulder, Colorado, 28 March 1985.



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Invited Talk on "Cancer Risk from Workplace Smoking", Conference on Smoking and the Workplace, Society for Occupational and Environmental Health, Washington DC, 10 April 1985. Participant, Planning Workshop on Research Program for Passive Smoking on Aircraft, sponsored by the World Health Organization, Geneva, Switzerland, April 17-19, 1985. Invited Talk on "Risk Assessment of Passive Smoking", University of California, Berkeley/San Francisco, Program in Bio-Engineering, San Francisco, April 30, 1985. Presentation on Indoor Air Quality Problems on Passenger Aircraft. Public Hearing on Airliner Cabin Air Quality, National Academy of Sciences, Washington, D.C., June 14, 1985. Invited Talk on Modeling of Sidestream Smoke on Passenger Aircraft. National Academy of Sciences Committee on Airliner Cabin Air Quality. Woods Hole, Mass. July 25, l985. Invited testimony on risk of cancer from workplace passive smoking. Hearing on United States Senate Bill 1440, "The Nonsmokers' Rights Act of 1985", U.S. Senate Hearing, Dirksen Bldg., Washington, DC, 2 October 1985. Live telephone interview on workplace passive smoking. CBC Radio, Montreal, 4 October 1985. Invited presentation: "Quantitative Risk Assessment of Lung Cancer from Passive Smoking" National Academy of Sciences Committee on Passive Smoking, Washington, DC, 8 October 1985. Invited talk: "Role of Cigarette Smoke in Pediatric Respiratory Disease", 5th Annual Pediatric Pulmonary Conference, American Lung Association of Northern Virginia, Marriott Hotel, Bethesda, MD, 2 November 1985. Guest Speaker, "Risks of Passive Smoking", Harvard University Institute for The Study of Smoking Behavior and Policy, J.F.K. School of Government, Cambridge MA, 6 November 1985. Guest Speaker, "Health Risks of Active and Passive Smoking", 1985 Joint Annual Health and Safety Conference, United Auto Workers/Ford Motor Company, Fontainbleau Hotel, Miami Beach, FL, 4 December 1985. Technical Adviser on Secondhand Smoke, a videotape produced by Pyramid films, Los Angeles, California. 1986 Invited Lecture: "Respiratory, Cardiovascular, and Cancer Risks of Passive Smoking:" American Occupational Health Conference, Annual Meeting of the American Occupational Medical Association, April 29, 1986, Denver, Colorado. Invited Speaker: "Risks of Passive Smoking", Conference on Indoor Air Pollution, Jointly sponsored by the U.S. Environmental Protection Agency and the Council of State Governments, May 2, 1986, Boston, Massachusetts. Invited Speaker: "The Health Hazards of Passive Smoking", Educational Workshop on Health Hazards of Smoking, Pan American Health Organization, Washington, DC l4 May 1986.



-25- July, 10

Chairman, Session on Health Effects of Environmental Tobacco Smoke. 79th Annual Meeting of the Air Pollution Control Association, Minneapolis, Minnesota, 24 June 1986. Testimony on Health and Air Pollution Effects of Environmental Tobacco Smoke. U.S. House of Representatives Hearing before the Committee on Energy and Commerce, Subcommittee on Environ-ment, Rayburn House Office Building, Washington, D.C. 27 June 1986. Invited Talk: Field Surveys, Modeling, Measurement, and Health Effects of Environmental Tobacco Smoke. Environmental Health Directorate, Health & Welfare Canada, Ottawa, Canada, 28 October 1986. Invited Talk: Quantitative Risk Assessment of Lung Cancer From Domestic and Workplace Exposures to Passive Smoking. Special Advisory Committee on Passive Smoking, Smoking Control Programme, Health & Welfare Canada, Ottawa, Canada, 29 October 1986. Invited Talk: Risks of Involuntary Smoking. Annual Industrial Hygiene Conference, National Aeronautics and Space Administration, Omni Hotel, Charleston, S.C., 5 Nov 1986. Invited Address to Visiting Soviet Delegation: Field Studies, Modeling, and Measurement of Sidestream Smoke: Using the National Academy of Sciences Report on Environmental Tobacco Smoke for Health Effects Analysis. National Academy of Sciences, Washington, DC. 9 December 1986. Invited Lecturer: Public Health Program Seminar on Environmental Tobacco Smoke. Department of Public Health, Yale University Medical School, New Haven, CT. 16 December 1986. 1987 Invited Talk: Effects of Ventilation on Environmental Tobacco Smoke. Department of Defense Health Promotion Coordination Meeting, The Pentagon, Arlington, VA. 7 January 1987. Mention of my work in “Nonsmokers: Time to Clear the Air,” by C. Everett Koop, MD, Readers’ Digest, 110-113, April 1987. Interview: Tobacco Science Wars. Eliot Marshall, Science, News & Comment. 17 April 1987. Invited Speaker: "The Health Hazards of Passive Smoking", Educational Workshop on Health Hazards of Smoking, Pan American Health Organization, Washington, DC l4 May. Co-chairman, Session on Characterization of Environmental Tobacco Smoke, 4th International Conference on Indoor Air Pollution, Aug.15-21, 1987, Berlin, W. Germany. Invited Speaker: "Passive Smoking, Lung Cancer, and Cardiovascular Mortality", Ad Hoc Committee on Cardiovascular and Pulmonary Disease Risk Factors in Minority Populations, Advisors to the Director, National Heart, Lung, & Blood Institute. Bethesda, MD 26 August 1987. Invited Lecturer: "Modeling and Measurement of Exposure to Environmental Tobacco Smoke." Indoor Air Quality Symposium, Environmental Health & Safety Division, Georgia Tech Research Institute, Atlanta, GA, 23 September 1987.



-26- July, 10

Invited Speaker: "Risks and Control of Passive Smoking", Annual Meeting of the American Medical Women's Association, Orlando FL, 31 October 1987. Invited Speaker: "Risk Assessment of Environmental Tobacco Smoke", presented at Risk Assessment Workshop, sponsored by Office of Research & Development, USEPA, Research Triangle Park, NC, 30 November 1987. 1988 Expert Witness: AFGE/AFLCIO vs. U.S. Department of Health & Human Services, re: smoking policy dispute. Hearing before Administrative Law Judge, March 2, 1988, Washington, DC. Interview on passive smoking. Belgian Public Television (Dutch section), Bowie, Maryland, 2 April 1988. Invited Speaker: "Sick Buildings and the role of the Architect". Guest Lecturer, Graduate School of Architecture, Catholic University of America, Washington, DC, 25 April 1988. Invited Speaker: "Environmental Tobacco Smoke". Indoor Air Conference sponsored by the Consumer Federation of America. Washington, DC, 23 May 1988. Guest Lecturer: "Assessing Human Exposures to Indoor Pollutants: Environmental Tobacco Smoke." Human Exposure Seminar, USEPA, Washington, DC, 29 June 1988. Television Interview on Airliner Cabin Air Quality, CBS TV National News Program "48 Hours", broadcast nationally on September 8, 1988. Invited Discussant: Healthy Buildings '88 Conference, Workshop W7, "Avoiding Health Problems in Low Energy Buildings; Workshop W8, "Benefits & Drawbacks of Natural & Mechanical Ventilation"; Workshop W14, "Consequences of Dramatic Changes in Outdoor Air Rates"; Stockholm, Sweden, Sept. 5-8, 1988. Invited Lecturer: "Risks and Control of Passive Smoking", Georgia Tech Research Institute Indoor Air Quality Seminar, Atlanta, GA, Sept.20-22, 1988. Presented paper and invited panelist: "Workplace restrictions on passive smoking: justification on the basis of cancer risk", APCA Specialty Conference on Combustion Processes and the Quality of the Indoor Environment, Niagara Falls, NY, September 27-29, 1988. Interview on indoor air pollution; published in the Boston Globe, Sunday Magazine, October, 1988. Presented paper: "Modeling and measurement of aerosol and nicotine from environmental tobacco smoke", Annual meeting of the American Association for Aerosol Research, Chapel Hill, NC, October 10-13, 1988. Invited Testimony before New Jersey State Commission on Smoking Or Health. Trenton, NJ, 28 November 1988. Interview on a new risk assessment of passive smoking CBS TV Evening News (National), broadcast December 2, 1988.



-27- July, 10

Presented paper: "Summary Risk Assessment of Lung Cancer from Environmental Tobacco Smoke", J.L. Repace. Harvard University Workshop on Risk Assessment of Indoor Pollutants, Harvard School of Public Health, Cambridge, MA, Dec. 6-8, 1988. Technical adviser on On The Air, a videotape on workplace smoking policies produced by Pyramid Films, Los Angeles, California. Released December, 1988. 1989 Invited panelist: Session on Protecting Nonsmokers. Legislative Conference on Tobacco Use in America, sponsored by the American Medical Association. University of Texas, Houston, TX January 26-27, 1989. TV Interview on Sick Building Syndrome: NOVA (US) and HORIZON (UK), BBC Television, taped at the U.S. Environmental Protection Agency, Washington, DC 10 February 1989; broadcast in UK and US. Interview published in the News Section of the Journal of the National Cancer Institute: "Passive Smoking Occurs on Commercial Flights", by F.X. Mahaney. Invited Lecturer: "Why Workplaces Should be Smoke-free". Johns Hopkins University School of Medicine, Health Resources Program, Baltimore, MD. 11 April 1989. Radio Interview on Indoor Air Pollution and Sick Buildings: WMCA National Radio Talk Show, Broadcast Live on Sunday, June 11 1989 at 10 PM. At the request of the National Cancer Institute's Office of Cancer Communications, I gave an interview: "Ventilation and smoking in the workplace," which was published as a single page in a 10-page booklet: "Smoking Policy, Questions and Answers." Interview with Associated Press: "Cigarette pollution: threat to nonsmokers may be worse than suspected". Tuesday 20 June 1989. "EPA: Indoor Smoking is big pollutant", p.1, Interview with USA TODAY, Tuesday, 20 June 1989. Reprinted in International Herald Tribune. Invited expert testimony on environmental tobacco smoke on aircraft, Hearing on Legislation to Limit or Ban Smoking on Commercial Airliners, before the Subcommittee on Aviation, Committee on Public Works and Transportation, U.S. House of Representatives, Washington, DC., 22 June 1989. TV Interviews on smoking on aircraft, CBS TV, Channel 9; also COX Broadcasting; Washington, DC, 22 June 1989. Awarded The Medallion of the Surgeon General of the United States, by Surgeon General C. Everett Koop, in Washington, DC, 10 July 1989. Interview on Smoking on Aircraft, for Travel Holiday Magazine (November issue), 21 August 1989. Invited speaker: Smoking in the workplace and ventilation. Session on Smoking in the Workplace, fairness and self-preservation. National Safety Council Congress and Exposition, Chicago, 31 October 1989.



-28- July, 10

Expert testimony on effect of designated smoking areas on smokers, delivered before the Federal Service Impasse Panel of the Federal Labor Relations Board in the case of American Federation of Government Employees vs. Department of Veteran's Affairs. Washington, DC 2 November 1989. Certificate of Appreciation "for substantial contributions" to the study of effect of tobacco smoke on airliner cabin air quality. U.S. Department of Transportation, Washington, DC Nov.7, 1989. Interview on effects of sick building syndrome on workers. RCA Cable TV. Washington, DC Nov.15, 1989. Interview on passive smoking for article to appear in Cook Light Magazine. 16 Nov. 1989. Interview on indoor air pollution CBC-TV, Toronto. 1 December 1989. Interview on passive smoking "Battling Pollution Becoming and Inside Job", Los Angeles Times, Tues. Dec. 26, 1989. 1990 Invited Lecturer: "Passive Smoking in the Workplace", University of Auckland School of Medicine, Auckland, New Zealand, 20 March 1990. Invited talk: "Update on the health effects of passive smoking." Prevention '90 conference sponsored by the American College of Preventive Medicine, Atlanta, GA, 20 April 1990. TV Interview: Horizon, BBC London, on Passive smoking risks. Taped for Broadcast in January 1991; Syndicated for rebroadcast on NOVA, PBS Washington, DC, Oct 2, 1990. Guest Lecturer, Risks and Control of Passive Smoking, NIVA: Nordic Institute for the Advanced Study of Occupational Health, Oslo, Norway, Seminar on Environmental Tobacco Smoke, October 7-10, 1990. 1991 Invited Speaker: "Cigarette smoke pollutants in the office and workplace." 4th International Conference on Environmental Lung Disease, sponsored by the American College of Chest Physicians. Montreal, Canada, Sept. 28, 1991. Guest Speaker, Risks and Control of Passive Smoking, Joint Seminar of the Department of Cardiology and the Insitute for Health Policy, University of California San Francisco Medical School, 18 November 1991. Guest Lecturer: "Environmental Tobacco Smoke." "Tobacco 1991" Course, Department of Health Policy and Management, Johns Hopkins University, Baltimore, Maryland. December 5, l991. 1992 Invited speaker: "Control of Environmental Tobacco Smoke in the Workplace." Prevention '92 Conference, sponsored by the American College of Preventive Medicine, Baltimore, MD., March 1992.



-29- July, 10

Invited Lecture, Pharmacokinetics of nicotine and cotinine in passive smoking. Dept. of Cardiology, University of California, San Francisco, California.. October 12, 1992: Invited lecturer: Exposure and Dosimetry of Passive Smoking, Office of Environmental Health Hazard Assessment (OEHHA), California Environmental Protection Agency, Oakland CA, October 11, 1992. Invited lecturer: Risk Assessment of passive smoking, Public Hearing on Passive Smoking, California EPA, Oakland CA. October 14, 1992: Invited speaker: Passive smoking and the nonsmoker. Dept. of Civil Engineering, Stanford U. Stanford, CA. October 16, 1992: 1993 Invited lecture : Air Pollution and public policy. Johns Hopkins University Environmental Health & Engineering Continuing Education Ctr., School of Hygiene & Public Health. June 11, 1993: Invited Speaker and Panelist: "Environmental Tobacco Smoke: What it means for lung cancer prevention." Workshop on the primary and secondary prevention of lung cancer. International Association for the Study of Lung Cancer. Potomac Maryland, November 7-9, 1993. 1994 Testimony on Local Laws to restrict smoking in Fast Food Restaurants, on Smoking, and on Restricting Smoking in Child Care Facilities (Int. #'s 11, 232, and 291) before the New York City Council; 6 June 1994. Guest Lecturer: "Environmental Tobacco Smoke." "Tobacco 1994" Course, Department of Health Policy and Management, Johns Hopkins University, Baltimore, Maryland. May 13, 1994. Participant: News Conference by the New York State Attorney General attacking the Tobacco Industry Campaign to discredit studies on nicotine addiction and secondhand smoke. N.Y. State Dept. of Law, 120 Broadway, New York City, N.Y, 27 July 1994. Invited speaker. The EPA Report on Passive Smoking. Symposium on Passive Smoking. 9th World Conference on Smoking and Health. Paris, France. Oct 10-14, 1994. 1995 Interview: “The Truth About Secondhand Smoke.” Consumer Reports, 27-33, January 1995. Guest Faculty: Tobacco, 1995. Johns Hopkins School of Public Health, Balitmore, MD. April 1995. Invited Participant: Congressional Research Service, Library of Congress Workshop on Environmental Tobacco Smoke. 5 June 1995, Washington, DC. Biographical Profile: Career Choices - Exposing the Dangers of Tobacco Smoke. In: Physics Today, 59-60, October 1995.



-30- July, 10

TV Interview. NOVA, Public Broadcasting System. Can Buildings Make You Sick? Broadcast 26 December 1995. Ad hoc scientific editor, Chapter 3, “Synergism in Carcinogenesis: Mathematical Approaches to its evaluation,” by Arnold E. Reif, in: Chemical Induction of Cancer - Modulation and Combination Effects - An Inventory of the Many Factors Which Influence Carcinogenesis. Joseph C. Arcos, Mary F. Argus, and Yin-tak Woo, Eds. Birkhauser, Boston, Basel, Berlin, 1995. 1996 Interview on secondhand smoke. Secondhand Smoke Clearing the air about the risks. Better Homes & Gardens pp 66-71, Feb 1996 Interview: in “Smokescreen: How the tobacco institute, its PR agents at Fleishman Hllard and its lawyers at Covington & Burling helped turn a smalltime Fairfax businessman into an international authority on indoor air quality and cigarette smoke.” by Morton Mintz, Washington Post Magazine, March 24, 1996. Significant mention in Richard Kluger’s book on the tobacco industry, Ashes to Ashes, Knopf, April 1996. Invited speaker: Where There’s Smoke -- Cigars, The Latest Trend. ASSIST Information Exchange Training Conference - Building Momentum for Tobacco Prevention: Planning for the Future, sponsored by the National Cancer Institute and the American Cancer Society, Arlington, VA., Oct. 22-23, 1996. Invited speaker: Maintaining a Comprehensive Approach to Tobacco Control - The Continuing Need for Clean Indoor Air Laws. ASSIST Information Exchange Training Conference - Building Momentum for Tobacco Prevention: Planning for the Future, sponsored by the National Cancer Instittute and the American Cancer Society, Arlington, VA., Oct. 22-23, 1996. Co-Chair & Discussant: Environmental Tobacco Smoke Session, Monday Nov. 18, 1996. American Public Health Association 124th Annual Meeting, Nov. 17-22, 1996 New York, NY. Invited Lecturer: Health Risks of Environmental Tobacco Smoke - Policy Issues. International Workshop for Strengthening Collaboration on Tobacco Or Health Issues Among WHO Collaborating Centres, Atlanta, GA, Co-sponsored by World Health Organization Substance Abuse Programme and the U.S. Centers for Disease Control. 6-9 November 1996. Guest lecturer: Environmental Tobacco Smoke Exposure, Dose, and Risk. The Institute for Cancer Research, The Norwegian Radium Hospital, University of Oslo, Montebello, Oslo, Norway. Nov. 25, 1996. 1997 Panelist: Workshop on Cigar Smoking. Sponsored by the National Cancer Institute. Feb. 3, 1997, Reston, VA. Telephone interview on measurement of tobacco smoke infiltration between row-houses. The Edinburgh Post (Scotland, UK) 5 February 1997.



-31- July, 10

Interview with the Toronto Star on Smoking in the 1990’s. 24 April 1997. Peer Review Panelist, General Biomedical Study Section Meeting, University of California Tobacco-Related Disease Research Program, San Francisco, CA, May 6, 1997. Interview on Cigar Smoking. Newsweek, published July 13, 1997. Invited talk on Cigar smoke pollution. Entering a New Dimension - A National Conference on Tobacco and Health. Co sponsored by the American Cancer Society and the National Cancer Institute. Houston TX Sept. 22-24, 1997. Course Leader: 2-Day Seminar on Environmental Tobacco Smoke. Lectures: Hazard and Overview, Exposure and Dose, Dose-Response and Control, Tobacco Industry Disinformation. 3rd Chilean Congress on Epidemiology, Viña Del Mar, Chile, South America. Oct. 14-15, 1997. Participant in a Multi-media Press Conference on the Contribution of ETS to Air Pollution Exposure in the Chilean Population. Sponsored by the Chilean Ministry of Health, Cancer Unit, Santiago, Chile, S.Å., Oct. 17, 1997. Presented scientific paper: Mathematical Models for Predicting Time-Averaged Environmental Tobacco Smoke Concentrations. International Society of Exposure Analysis (ISEA) Annual Meeting. November 2-5, 1997, Research Triangle Park, NC. Invited Paper: Cigar Smoking: The Hot New Trend in Indoor Air Pollution Accelerates. 125th American Public Health Association Annual Meeting, Indianapolis, IN. Nov. 9-13, 1997. 1998 Invited talk: Environmental Tobacco Smoke: the Hospitality Industry Workplace. “Smokeless in Hawaii Conference,” sponsored by the Hawaii Dept. of Health, etc. Honolulu, HA, Jan 16, 1998. Interview on Cigar Smoking. KHON TV, Honolulu, HA, Jan 16, 1998. Invited lecture: Reducing Exposure to Environmental Tobacco Smoke. National Tobacco Policy Forum. What Works: Effective Public Health Approaches to Tobacco Control. Capitol Hill Forum Series, sponsored by Partnership for Prevention. U.S. House of Representatives, Rayburn Building, Washington, DC Feb. 11, 1998. Interview: Safe cigarette alternative? No cigar - Stogies’ surging popularity spurs scientists to document dangers. By Doug Levy. USA TODAY, 10D, 23 Feb 1998. Invited Lecture: Passive Smoking in the Workplace. Johns Hopkins Education and Research Center in Occupational Safety and Health. Johns Hopkins University School of Hygiene and Public Health, Dept. of Environmental Health Sciences. Baltimore, MD. 2 March 1998. Invited lecture on medical effects of passive smoking. Conference on Environmental Tobacco Smoke Sponsored by the North Carolina Medical Society. Cary, NC 15 April 1998.



-32- July, 10

Peer Reviewer, ETS exposure research (via teleconference). California Tobacco Related Disease Program. San Francisco, CA, 19 April 1998. Invited plenary talk on Clean Indoor Air Ordinance issues in the changing environment. ASSIST Annual Information Exchange. Detroit, MI 21 April 1998. Interview on newly disclosed secret tobacco industry documents concerning attempts to discredit my work on ETS. The New Scientist. Interview on newly disclosed secret tobacco industry documents concerning attempts to discredit my work on ETS. The Wall Street Journal. April 28, 1998. Invited Lecture on Dosimetry of Secondhand Smoke. Montreal Regional Health Board, Montreal, Quebec, April 30, 1998. Participant, Montreal Regional Health Ministry press conference on risk to Quebec Restaurant Workers from exposure to ETS, covered by regional print and television media. Montreal Quebec, April 30, 1998. e.g., see: Customers’ smoke kills waiters: study The Gazette MONTREAL, 1 May 1998. Tutorial on Secondhand Smoke. North Dakota Department of Health. Bismarck, ND, 6 May 1998. Guest Lecturer on Environmental Tobacco Smoke, Exposure, Dose, and Risk. Before the Masters Program in Public Health, Instituto de Ciencias Biomedicas de Abel Salazar, Universidade do Porto, Porto, Portugal, 13 May 1998. Invited Speaker: Environmental Tobacco Smoke. Session on Environmental Health. 15 May 1998. Portuguese Medical Association Meeting, Porto, Portugal 14-16 May 1998. Expert Witness. In the matter of a proceeding under Article 6 of the Family Court Act. County of Onondaga, NY. Baker vs. Kelly. Syracuse, NY 18 May 1998. Outcome: won court order prohibiting smoking in the home of my client’s children, who are in the custody of his ex-wife. Invited Lecture: Passive Smoking: Exposure, Dose, Risk, and Control. Dept. of Environmental Health Sciences Summer Institute, Johns Hopkins University School of Hygiene and Public Health,. Baltimore, MD.10 June 1998. Invited Speaker: American Cancer Society Workshop “Cigar Smoking Health Risks: State-of-the-Science,” Washington, DC June 15-16, 1998. Newspaper Interview: “The smoke’s cleared. Secondhand report has left its mark on USA.” Cover Story. USA TODAY, Weds. July 22, 1998, front page. Presented Paper: Models for Dose and Risk from Secondhand Smoke. 8th Conference of the International Society for Exposure Analyis, Boston, MA August 15-18, 1998. Deposed in Badillo vs. American Tobacco et al. and Avallone vs. American Tobacco et al., Class Action Litigation (Casino workers vs. the Tobacco Industry) Washington, DC, August 20, 1998.



-33- July, 10

Invited Participant: Technical Assistance Meeting on Retrieving, Cataloguing and Analyzing Tobacco Industry Documents. Sponsored by the Office of Public Health and Science, Assistant Secretary for Health, U.S. Dept. of Health & Human Services, Washington, DC, Sept. 11, 1998. Luncheon Speaker: Secondhand Smoke: Exposure, Risk, and Control. Tobacco Free Action Coalition of Dutchess, Sullivan, and Ulster Counties (NY). 1st Annual Awareness Forum Luncheon, Hudson Valley Resort, Kerhonkson, NY Sept. 16, 1998. Lecture on Risks and Control ETS: Breakfast Meeting of the Red River Health Promotion Coalition, Wahpeton, ND. October 23, 1998. Lecture on Health Risks and Dosimetry of ETS: MeritCare Hospital, Oct 22, 1998, sponsored by the North Dakota Dept. of Health, Fargo ND, October 23, 1998. Interview on risks of secondhand smoke to children. Parents’ Magazine, November 1998 (43-43). Invited Lecturer: Active and Passive Smoking in Greece. Department of Critical Care, Evangelismos Hospital, University of Athens, Athens, Greece, 12 November 1998. Invited Lecturer: “Filtration of Tobacco Smoke -- Panacea or Nostrum?” Post-Graduate Course given at the 3ο ΔΙΑΤΟΜΕΑΚΟ ΜΕΤΑΠΤΥΧΙΑΚΟ ΣΕΜΙΝΑΡΙΟ “ΑΝΑΠΝΕΥΣΤΙΚΗ ΑΝΕΠΑΡΚΕΙΑ: ΕΝΙΚΑΙΡΑ ΤΗΕΜΑΤΑ”, 13-15 1998, sponsored by the Annual Congress of the European Respiratory Society. Athens, Greece, 14 November 1998. Acceptance Speech: Lifetime Achievement Award, ATOD Section, American Public Health Association Annual Conference, 18 November 1998, Washington, DC Invited Lecture: “Why Secondhand Smoke Cannot be controlled by Ventilation.” Seminar on Ventilation Technology in the Hospitality Industry. Sponsored by the Ontario Campaign for Action on Tobacco. Ontario Medical Society, Toronto, Canada 24 November 1998. Testimony in favor of listing ETS as a “known human carcinogen” in the 9th Report on Carcinogens of the U.S. National Toxicology Program. Board of Scientific Counselor’s Meeting, National Institute of Environmental Health Sciences, Research Triangle Park, NC, 2 December 1998. Invited talk: “ETS Basics” Tobacco Prevention Coordinators Training Meeting, Florida Dept. of Health, Orlando, FL Dec. 7, 1998. 1999 Invited talk: Secondhand Cigar Smoke. National Dental Tobacco Free Steering Committee, National Institutes of Health, Bethesda, MD. 25 January 1999. TV Interview: The Sick Building Syndrome. CBS Network TV News Program, 60 MINUTES. Sunday, February 7, 1999.



-34- July, 10

TV Interview: Debate on Proposed Montgomery County Maryland Restaurant/Bar Smoking Ban. Maryland Public Television (Statewide). Wednesday 10 February 1999. Testimony on Proposed Montgomery County Maryland Restaurant/Bar Smoking Ban, before the Montgomery County Council, Rockville, MD Thurs. 11 February 1999. TV Interview: on Proposed Montgomery County Maryland Restaurant/Bar Smoking Ban, before the Montgomery County Council, Rockville, MD Thurs. Fox 5 News. 11 February 1999. Informal presentation of Fact Sheet on Secondhand Smoke, an internet resource produced for GlobaLink, an internet service of the International Union Against Cancer. 2nd European Conference on Tobacco or Health, 1st Iberoamerican Conference on Tobacco or Health, 23-27 February 1999. Las Palmas, Gran Canaria, Canary Islands, Spain. Invited expert testimony on tobacco smoke and ventilation before a subcommittee of the City Council of Worcester, MA, sponsored by the Massachusetts Department of Health. Worcester, MA, 8 April 1999. TV Interview: Newsmaker interview on Worcester testimony by TV Channel 3, Worcester, MA. 8 April 1999. TV Interview: on a new book by 2 tobacco industry consultants attacking the EPA’s report on secondhand smoke. CBC Morning, CBC-TV Canada. 8 am News. April 19, 1999. Guest Lecturer, Graduate Seminar in Environmental Health. Passive Smoking: Exposure, Dose, Risk, and Control. Dept. of Environmental Health Sciences, Johns Hopkins University School of Hygiene and Public Health,. Baltimore, MD.4 May 1999. ETS Seminar: Secondhand Smoke Basics and Cigar Smoking: The Hot New Trend in Indoor Air Pollution. Minnesota Statewide Tobacco Prevention & Control Training Meeting, Minnesota Dept. of Health, St. Paul MN, 12 May 1999. Invited expert testimony on tobacco smoke and ventilation before a subcommittee of the City Council of Cambridge, MA, sponsored by the Massachusetts Department of Health. Cambridge, MA, 19 May 1999. Guest Lecturer, Summer Institute in Environmental Health. Passive Smoking: Exposure, Dose, Risk, and Control. Dept. of Environmental Health Sciences, Johns Hopkins University School of Hygiene and Public Health,. Baltimore, MD.1 June 1999. Interview on Secondhand Smoke & Ventilation. Club Management Magazine, May/June 1999 issue. Live radio interview on a new study of passive smoking and stroke. KFYI (910 AM) NewsTalk, Phoenix, Arizona. 18 August 1999. Invited Lecture: Assessing exposure, dose, and asthma risk from environmental tobacco smoke in children. Symposium on Environmental Tobacco Smoke and Child Health. 11th Annual Conference of the International Society for Environmental



-35- July, 10

Epidemiology (ISEE) / 9th Conference of the International Society of Exposure Analysis (ISEA). Athens, Greece, Sept. 5-8, 1999. Invited presentation: Real and Imaginary Control Measures for Secondhand Smoke. New England and Eastern Canada Tobacco Control Conference, Hyannis, Massachusetts. Sponsored by the Massachusetts Department of Health, 21 Sept. 1999. Invited presentation: Why displacement ventilation cannot control tobacco smoke in restaurants. Mesa, Arizona City Council, Mesa AZ., 23 Sept. 1999. Radio Interview on Secondhand Smoke: “The David Lebowitz Show.” KTAR AM, Phoenix, AZ, 23 Sept. 1999. Invited Lecturer: ETS Basics. Annual Meeting of the Coalition for a Tobacco-Free Arizona. Phoenix, AZ, 23 September 1999. Radio Interview on Secondhand Smoke: “Wake Up Arizona.” KFYI AM, Phoenix, AZ, Oct. 4, 1999. Invited Lecturer: PreConference Workshop: 9th Annual Research Roundtable Discussion: Environmental Tobacco Smoke. American Society of Addiction Medicine 12th National Conference on Nicotine Dependence, October 14-17, 1999, Cleveland, OH, Oct. 14, 1999. Plenary Speaker: Exposure, Risk, and Control of Secondhand Smoke. American Society of Addiction Medicine 12th National Conference on Nicotine Dependence, October 14-17, 1999, Cleveland, OH, Oct. 15, 1999. Course Director, Co-organizer, and Principal Lecturer: 30-hr Workshop for MPH Students: Saúde Pública e Tabagismo Passivo (Public Health & Passive Smoking). Sponsored by the Dept. of Public Health, University of Porto; co-sponsored by the British Council, the Portuguese-American Development Fund, and the Programa de Intervencao Operacional em Saude. Oporto, Portugal, 18 to 22 October, 1999. TV Interview: The Tobacco Industry and Passive Smoking. TV Norway (Trondheim), Taped in Washington, DC, Oct. 25, 1999. Radio Interview: WEZD 1050 AM New York, The Jay Diamond Show (live) 4 PM -5:40 PM : Nov. 1, 1999. Consultation for the Heart Foundation of Australia, 17 Nov. thru 26 Nov. 1999: • Sydney, New South Wales: 18 Nov. Seminar “ETS-an international perspective”. • ETS Briefings for Minister of Health, Opposition Minister of Health, New South

Wales (NSW). • Presentation, ETS risks and control for Heart Foundation (Sydney) staff. 19 Nov. • Briefing for NSW Board & Staff. Melbourne, Victoria: 22 Nov. Victoria Govt. ETS

Briefings - Director of Public Health, Opposition spokesperson for health; Minister for Health.

• Presentation, ETS Risks and Litigation, Australian Plaintiff Lawyers Association. 23 Nov.

• ETS Briefings, Melbourne: Union Representatives; Victoria Occupational Health (WorkCover); Victoria Chamber of Commerce, Australia Industry Group; Dept. of Human Services, VicHealth, Quit, AntiCancer Council, Asthma Foundation.



-36- July, 10

• Hobart, Tasmania, 24 Nov.: Presentation on ETS Risks and Control, Briefing for Health Minister.

• Adelaide, South Australia, 25 Nov.: Presentation, ETS Risks and Control, Ministerial Tobacco Advisory Task Force.

• Media Interviews: ABC Late News (national) Interview on passive smoking & breast cancer. The Sydney Morning Herald (25 Nov, p. 6), “A ban on smoke puffs up restaurants’ profits;” The Herald Sun p.30 (Melbourne, 25 Nov) “Clamp on Pub Smoke;” Nov. 25 Radio 2GB (Sydney) interview on passive smoking; The Mercury (Hobart, Nov. 26, p. 17) “Smoky Pubs Under Fire;” The Bulletin with Newsweek (national), p. 21, Nov. 30, 1999 “The Man With the Smoking Gun.”

Consultation for Smokefree Coalition (New Zealand) [Lung, Heart, Stroke, Cancer, societies, various medical and dental groups, workers, etc.] 29 Nov to 1 Dec., 1999: Wellington, NZ, Nov 30: Conference on Passive Smoking - presentations {Secondhand Smoke Exposure and Risk; Dosimetry of ETS - Linking the Science with Action; Plenary Panel Session on Recommendations for Action). Auckland, Dec. 1: Presentation at ASH of New Zealand, ETS Risks and Control. Media Interviews: Radio New Zealand, Wellington, Nov. 30, 1999; New Zealand Herald, A16, “Ban smoking in public places says US Expert,” Auckland, NZ, Dec. 8, 1999. Deposed in Sagatelian v. South Lake Homeowners’ Assoc. et al. (Secondhand smoke infiltration in a condominium), Pasadena, CA, Dec. 19, 1999. Telephone Interview on New Smoking Ban in British Columbia Pubs and Restaurants: The Vancouver Observer, British Columbia, Canada. Dec. 29, 1999. 2000 Magazine Interview: “Where there’s smoke, there’s ire.” Engineered Systems Vol 17 # 1, pp. 92-98, January 2000. Newspaper Interview: “Suit tests risk of secondhand smoke in condos.” Los Angeles Daily Journal, p.10, Jan 11, 2000. Expert Testimony in Sagatelian v. South Lake Homeowner’s Association (Secondhand smoke infiltration in a condominium), Los Angeles Superior Court, Pasadena, California, Jan 11-12, 2000. Testimony before the New Bedford, MA Health Board on risks and control of secondhand smoke, sponsored by Mass. Health Dept. New Bedford, MA 7 Feb 2000. Deposed in Leonard v. Rollette County, Secondhand smoke litigation in North Dakota. 9 February 2000. Testimony before the New York City Council Health Subcommittee on risks and control of secondhand smoke sponsored by Smokefree City Coalition. New York, NY 23 Feb 2000. Written testimony submitted to the Princeton, NJ Regional Health Commission on risks and control of secondhand smoke. 25 Feb 2000 sponsored by New Jersey Breathes Coalition.



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Invited presentation: “Secondhand Smoke, Inside and Out,” at “The Smoke Around You” conference, sponsored by the Nebraska Dept. of Health & Human Services, Lincoln, NE, 21 March 2000, Lincoln NE. Interviews: KFOR Radio, Channel 8 TV, Lincoln. Testimony before the Philadelphia City Council on risks and control of secondhand smoke. 24 May 2000 sponsored by Health Promotion Council of SouthEastern Pennsylvania. Ad Hoc Advisor, World Health Organization Working Group on Policies to reduce exposure to Environmental Tobacco Smoke. Lisbon, Portugal, 29-30 May 2000. Co-arranger and Speaker: Conference on Involuntary Smoking: health risks and policies to reduce exposure. Sponsored by the Luso-American Development Foundation in collaboration with the WHO Centre for Environment and Health (Bilthoven Division) and Masters Program in Public Health, School of Medicine, University of Porto. Lisbon, Portual, May 31, 2000. Guest Lecturer: Summer Institute in Environmental Health. Passive Smoking: Exposure, Dose, Risk, and Control. Dept. of Environmental Health Sciences, Johns Hopkins University School of Hygiene and Public Health,. Baltimore, Maryland. 7 June 1999. Guest Lecturer: Indoor Air and Body Fluid Standards for Environmental Tobacco Smoke. Cancer Bureau Seminar, Laboratory Centre for Disease Control, Health Protection Branch, Health Canada, Ottawa, Ontario, Canada. June 9, 2000. Newspaper interview on Passive smoking (with photo): L’interdiction de fumer aurait pour effet de ramener la clientele non fumeuse dans le bars et restaurants. La Presse, Montreal, Quebec, Canada, June 9, 2000. Participant: NIOSH Workshop on Work, Smoking, & Health. Washington, DC., June 15-16, 2000. Keynote Speaker: ETS Conference. Sponsored by the Attleboro Tobacco Control Program, Attleboro, MA, June 20, 2000. Deposed in People of the State of California v. Philip Morris Inc., et al., San Diego, CA, August 3,4, 2000. Presented Poster Paper: Restaurant Passive Smoking: Exposure, Dose, Risk, & Control. Session: Environmental Tobacco Smoke in the Worksite II, Weds. Aug 9. 11th World Conference on Tobacco or Health, Chicago, IL August 6-11, 2000. Symposium Co-chair, and Invited Paper: Predicting Environmental Tobacco Smoke Exposures and Risks of Restaurant, Bar, and Casino Workers. Session: “Where there’s smoke, there’s ire: Environmental Tobacco Smoke in the Home and Worksite.” International Society of Environmental Epidemiology Annual Conference, Buffalo, NY August 20-25, 2000. Invited Lecturer: Science, Epidemiology, Economics, and Legal Implicatons of Clean Indoor Air Policy. Tobacco Use Prevention Training Conference, Denver Colorado, sponsored by the University of North Carolina Center for Health Promotion and Disease Prevention, Sept. 18, 2000.



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Invited Speaker: The Problem of Passive Smoking. New Jersey Health Officer’s Annual Meeting, sponsored by the New Jersey Dept. of Health & Senior Service. Rutgers University Cook College Center, New Brunswick, NJ. Sept. 21, 2000. Panelist: Expert Review Panel - Protection From Involuntary Exposure to Environmental Tobacco Smoke in Ontario - A review of the evidence regarding best practices. Sponsored by the Ontario Tobacco Research Unit. Toronto, Ontario, Canada. October 3, 2000. Radio Interview: ETS in the Hospitality Industry. Mornings 936 ABC. Hobart, Tasmania, Australia. October 11, 2000. Presented research paper, “Predicting environmental tobacco smoke concentrations in California homes.” Paper 5E-04p, Session: Environmental tobacco smoke: determining concencentrations & assessing exposures. . JL Repace, WR Ott, NE Klepeis and LA Wallace. 10th Annual Conference of the International Society of Exposure Analysis, Oct 24-27, 2000, Asilomar, Monterey, CA. Dec. 1, 2000. ETS & Ventilation teleconference with Regina, Saskatchewan, Canada, City Council. Sponsored by the Regina Regional Health Authority. Dec. 4-5, 2000. ETS Formal Lecture, Informal breakfast presentation to Winnipeg City Council; CBC TV and radio interviews and debates, Winnipeg, Manitoba, Canada. Sponsored by the Winnipeg Regional Health Authority. Dec. 13, 2000. Testified in Warren v. Keane 93 Civ. 6018 (JES). ETS Litigation involving 3 prisoners placed at risk from secondhand smoke. US District Court, Southern District of New York. New York, NY. 2001 8 Jan 2001. Deposed in McLaurin v. Strack. 97-CV-1765 (WHP)(S.D.N.Y.). ETS Litigation involving a prisoner placed at risk from secondhand smoke in the New York State Prison System. New York, NY. US District Court, Southern District of New York. New York, NY. 18 January 2001. Deposed in Duncan v. Northwest. C98-130Z US District Court, Western District of Washington. 20 Feb 2001. Testified in Reilly v. Grayson. Case No. 95-76362, U.S. District Court, Eastern District of Michigan, Southern Division, involving a prisoner placed at risk from secondhand smoke in the Michigan State Prison System. 27 Feb 2001. Keynote Speaker. Secondhand Smoke Taking a Closer Look. A Symposium, with James Repace, MSc. Sponsored by the Marion County, Indiana, Health Dept. Indianapolis, IN, the Dept. of Public Health of Indiana University (Perdue), etc. 1 March 2001. Testimony presented to the Health Committee of the New York City Council, concerning expansion of the New York City Smoke-Free Air Act. Sponsored by the American Cancer Society. New York, NY.



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5 March 2001. Lecture on Secondhand Smoke, Tobacco Cessation Conference co-sponsored by the University of Minnesota & Blue Cross, St. Paul, MN. 16 March 2001. Expert Testimony in Reilly v. Grayson, Case No. 95-76362, U.S. District Court, Eastern District of Michigan, Southern Division, Detroit. 22 March 2001. Lecture to the Minot, ND City Council on Secondhand Smoke. Minot, ND. Multimedia interviews. 5 April 2001. Multimedia Press Conference on Secondhand Smoke. Ottawa, Canada, sponsored by the Ottawa-Carleton Council on Smoking and Health. 6 April 2001. Testimony on a by-law to ban Secondhand Smoke in all workplaces, before the Ottawa City Council, Ottawa, Canada. 23-27 April 2001. Public Forums on Secondhand Smoke: Tulsa OK, Enid OK, Oklahoma City, Mc Alister OK, Lawton OK, Governor’s Task Force, Oklahoma City. Multimedia (radio, TV, print) Interviews, including KOFM, KGWA, KTOK, et al. 30 April 2001. Ad Hoc Peer Reviewer, Epidemiology Review Panel. California Tobacco-Related Disease Research Program, San Francisco, CA. 3 May 2001. Seminar on Secondhand Smoke. Dept. of Environmental Health Sciences, School of Hygiene & Public Health, Johns Hopkins University, Baltimore, MD. 14-16 May 2001. Consultation for Hong Kong Council on Smoking & Health (HKCOSH). May 14: 2001 World No Tobacco Day Programme, Tobacco Industry Disinformation - Briefing for Government Officials and the Public, Hospital Authority HQ, Kowloon; May 15: Multimedia Press Conference on Hong Kong Catering Workers’ Cotinine Study; Study shows catering workers at high risk of heart disease and lung cancer from passive smoking; May 16: Passive smoking: The big picture: monitoring and risk assessment: what should we be doing next? Hong Kong Council on Smoking & Health - A multidisciplinary seminar with HKCOSH Research Committee, HK Environmental Protection Department, University of Hong Kong Department of Community Medicine and Medical and Health Research Network. Hong Kong, China. 29-30 May 2001. Keynote Speech: Outdoor Tobacco Smoke/Secondhand Smoke and Ventilation. World No Tobacco Day National Conference, San Diego, CA. Sponsored by the California Dept. of Health. Keynote Speech: Outdoor Tobacco Smoke/Secondhand Smoke and Ventilation. San Diego, CA. July 2001. Review of my report on why ventilation can’t control tobacco smoke, done for the California Department of Health, by the California Tobacco-Related Disease Program (TRDRP), entitled, “The Ventilation Lie,” by Jeffrey Cheek, in Burning Issues, TRDRP Newsletter, Volume 4, No. 1. 31 July 2001. Invited Speaker: Clean Indoor Air Seminar -- Review of the Tobacco Industry Ventilation Strategy. Moving Tobacco Control Forward - Surveillance and Evaluation Workshop. Sponsored by the U.S. Centers for Disease Control & Prevention. July 31-August 2, 2001, Atlanta, GA. 6 August 2001. Videotaped for “Clearing the Air in Minnesota,” a community-action video about the dangers of secondhand smoke. Featured speaker at “Ventilation 101:



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Everything you need to know to counter ventilation arguments,” for local tobacco control advocates, Sponsored by Blue Cross - Blue Shield of Minnesota, St. Paul, MN. 20 August 2001. Invited Seminar Presentation, Hazard, Exposure, Dose, Risk, and Control of Passive Smoking. Clean Indoor Air Policies Course, August 19-24, 2001, Tobacco Use Prevention Training Institute, Co-sponsored by the US Centers for Disease Control and Prevention, and the University of North Carolina (Chapel Hill) Center for Health Promotion and Disease Prevention. Portland OR. 5 Sept 2001. Radio Interview: CKNW Radio, Vancouver, BC, Canada. Talk Radio Interview on Secondhand Smoke Hazards and Lack of Efficacy of Ventilation Controls. 1 October 2001. Invited Plenary Speaker. Clearing the Air Smoke-Free BC Protect Workers’ Health Public Symposium: Why BC need to Control second-hand smoke. Coast Plaza Hotel, Vancouver, BC. Sponsored by Clean Air Coalition of BC (BC & Yukon Heart & Stroke Foundation, Canadian Cancer Society, & BC & Yukon Lung Association). 2 October 2001. Invited Plenary Speaker. Clearing the Air Smoke-Free BC Protect Workers’ Health Public Symposium: National & International Discussion of Secondhand Smoke Issues. Hyatt Regency Hotel, Vancouver, BC. Sponsored by Clean Air Coalition of BC. Interview with CBC Radio. 17 October 2001. Deposed in Mullen et al. v. Treasure Chest, Riverboat Casino Workers. New York, NY. Case settled in New Orleans, Dec. 2001. 22-26 October 2001. Consultation for American Lung Association of Colorado: 22 Oct., Colorado Springs: Lecture: Risks and Control of Secondhand Smoke; Interviews: FM Radio: KRDO, KSKZ; KKFM, KKLI, KMOM, KVUU, KSPK; TV: CBS-11. 23 Oct., Pueblo: Lecture; 2 Discussions: Risks and Control of Secondhand Smoke; Interviews: Radio – KCSJ-AM, KNKN-FM; Print: Alamosa Valley Courier; Pueblo Chieftain. 24 Oct., Denver: Lecture; Discussion: Risks and Control of Secondhand Smoke; Interviews: Print - The Statesman. 25 Oct., Ft. Collins: 3 Discussions: Risks and Control of Secondhand Smoke; Interviews: Print: Coloradoan, CSU Collegian, No. Colo. Business Report; Radio: KUNC-FM. 26 Oct., Grand Junction: Lecture; Discussion: Risks and Control of Secondhand Smoke; Radio: KAFM; TV: KKCO, Ch 11; KREX, Ch 5. 27 November 2001. Invited Presentation: Secondhand Smoke & Ventilation, 2001 National Conference on Tobacco or Health, New Orleans, LA. Sponsored by the US Centers for Disease Control, Robt. Wood Johnson Foundation, U.S. EPA, etc., etc. 12 December 2001. Keynote Speaker Hazards and Control of Secondhand Smoke: Tobacco Control and Prevention: A Case for Clean Indoor Air Conference. Sponsored by the Kentucky Public Health Association, National Association of City, County Health Officials, and the Univesity of Kentucky Prevention Research Center. Lexington, KY. 2002 17-18 January 2002. Deposed in the matter of Jett v. Philip Morris, Inc., et al. (Flight attendants’ litigation) Miami, FL Case # 00-01680-CA-22, 11th Judicial Circuit, Miami-Dade County FL.



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23 January 2002. Why Ventilation Cannot Control Tobacco Smoke. Special Seminar co-sponsored by the Center for Tobacco Control Research and Education and the UCSF Cancer Center. University of California, San Francisco, San Francisco, CA. 25 January 2002. Tobacco Industry Disinformation, Moles, and Fronts. Special Seminar co-sponsored by the Center for Tobacco Control Research and Education and the UCSF Cancer Center. University of California, San Francisco, San Francisco, CA. 29 January 2002. Science-based Secondhand Smoke Policies. Seminar, Selected topics in Tobacco Science. Oregon Tobacco Prevention & Education Program, Portland, OR. 11-13 February 2002. Consultation for Office of Tobacco Control, Republic of Ireland, Dublin: Op-Ed, Irish Times; Media interviews: Six One TV News (RTE); TV3 Breakfast Show; Talk Radio Interview; Office of Tobacco Control Board Presentation; ETS Seminars: Environmental Health; Health & Safety; Academics at Dublin Castle. Briefing for Members of Parliament at the Dail. 22 March 2002. Keynote Speaker, Tobacco Smoke and Ventilation. Ontario Tobacco Control Conference, March 21-23, 2002, Toronto, Ontario, Canada, sponsored by Cancer Care Ontario, National Clearinghouse on Tobacco & Health, Ontario Tobacco-Free Network, Ontario Tobacco Research Unit, & Smoking & Health Action Foundation. 27 March 2002. Plenary Speaker: The Scientific Basis for Smoking Bans; WorkshopSpeaker: Tobacco Smoke & Ventilation. Washington State Department of Health Tobacco Prevention & Control Annual Meeting, Seattle, Washington, March 27-28. 11 April 2002. Keynote Speaker: EPA’s Secondhand Smoke Policy Development; Recipient, Dr. William Cahan Distinguished Professor Award. Inaugural Conference, Flight Attendant Medical Research Institute (FAMRI), Miami, FL April 10-12th, 2002. 25 April 2002. Guest lecturer: A history of U.S. federal secondhand smoke policy development. Institute for Health Policy & Dept. of Social & Behavioral Sciences, University of California, San Francisco, CA. 9 May 2002. Testimony before the Health Committee of the New Jersey Senate, Trenton, NJ, concerning Senate bills S1210 and S 444 to repeal pre-emption, sponsored by the New Jersey Breathes Coalition. 7 June 2002. Presentation to the Scientific Advisory Panel and Staff for the Robert Wood Johnson Foundation Innovator Award, Chicago, IL. 21 June 2002. Invited Keynote Speaker: Seminar on the Risks and Control of Secondhand Smoke for State Tobacco Control Officers. Teen Tobacco Summit Conference, sponsored by the Florida State Dept. of Health, Clearwater FL. 27 June 2002. Telephonic Testimony: Labor Arbitration: Cincinnati, Inc. v. Cincinnati Shaper Independent Union, Grievant A. Strunks. FMCS CASE # 020222-054586. 1 July 2002. Appointed Visiting Clinical Assistant Professor, Dept. of Family Medicine and Community Health, Tufts University School of Medicine, Boston, MA.



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2 July 2002. Presented Oral/Poster Paper, Passive Smoking Exposure and Risk for Irish Bar Staff, by M. Mulcahy and JL Repace, at the 9th International Conference on Indoor Air Quality and Climate, Monterey, California, June 30 – July 5, 2002. 11 July 2002. Peer Reviewer, National Cancer Institute Grant Panel PAR 01-063 “Review of Tobacco Industry Documents.” Via teleconference. 5 August 2002. Consultation with Office of Tobacco Control, City of New York, NY. 6 August 2002. Deposed in Alamin v. Coefield et al., 96 Civ. 1630; Alamin v. Coombe et al., 97 Civ. 37340, US District Court, Southern District of New York. New York, NY. 13 August 2002. Presented Poster Paper, ANALYSIS OF DOSE, EXPOSURE, AND RISK FOR HONG KONG CATERING WORKERS EXPOSED TO SECONDHAND SMOKE AT WORK ONLY , at the joint 12th Conference of the International Society of Exposure Analysis (ISEA) and the 14th Conference of the International Society for Environmental Epidemiology, August 11-15, 2002, Vancouver, BC Canada. 10 October 2002. Testified before the Health Committee of the New York City Council on a bill to ban smoking in all restaurants and bars. N.Y., N.Y. Sponsored by the SmokeFree City Coalition. 15 November 2002. Consultation for American Lung Association of Delaware. Field Study of Secondhand Smoke in the Hospitality Industry Before the Smoking Ban. Wilmingon, DE. 19 Dec 2002. Interview: No-smoking zone growing. The statewide playground ban adds a 25-foot buffer area. By John Hill -- Sacramento Bee Capitol Bureau, Published Tuesday, December 31, 2002. 2003 24 January 2003. Consultation for American Lung Association of Delaware. Followup Field Study of Secondhand Smoke in the Hospitality Industry After the Smoking Ban. Wilmingon, DE. 27 February 2003. Press Conference and Testimony before the Senate Finance Committee, Maryland Legislature, on SB 261, Clean Indoor Air Act of 2003. 3 March 2003. Press Conference presentation on the Delaware Hospitality Industry Air Quality Survey, American Heart Association, Wilmington, DE. 6 March 2003. Presentation to the Arizona Tobacco Prevention Coalition on the Delaware Hospitality Industry Air Quality Survey, Tempe, Arizona. 13 March 2003. Invited lecture on the Delaware Hospitality Industry Air Quality Survey, Center for Tobacco Control and Policy, University of California, San Francisco, CA. 8-10 April 2003. Consultation for ASH of The United Kingdom: Risk Assessment Report on Workplace Deaths in the UK from passive smoking; media interviews on National Radio: BBC Radio 5 Live; regional and local radio: BBC Wales; BBC Northampton; BBC Scotland; Viking FM. Invited Lecture at the 'Don't' Choke on the Smoke' Conference held on 9th April 2003 in London, sponsored by the Trades Union



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Congress and the Chartered Institute of Environmental Health. Invited testimony before a Parliamentary meeting, UK House of Commons All Party Parliamentary Group on Smoking and Health, London, England, UK. 18 April 2003. Consultation for Massachusetts Coalition for a Healthy Future: Measurements of Secondhand Smoke in 6 Boston Pubs prior to a smoking ban. 29 April 2003. Guest Lecturer on Secondhand Smoke. Dept. of Environmental Health Sciences, School of Hygiene & Public Health, Johns Hopkins University, Baltimore, MD. 12 June 2003. Guest Speaker: Risk Assessment of Passive Smoking in the U.K. Co-sponsored by the CDC National Center for Environmental Monitoring, the Agency for Toxic Substances and Disease Registry (ATSDR), and the Office on Smoking and Health (CDC), ATSDR HQ, Atlanta, GA. 12 June 2003. Invited Lecturer: Secondhand Smoke tutorial: Cotinine in hospitality workers and measurements of tobacco smoke pollution in hospitality venues. DeKalb County Dept. of Health, Decatur, GA. Public meeting on DeKalb smoking ordinance. 3-8 August 2003. Invited speaker: Main Session on Passive Smoking; Workshop on Passive Smoking; Press Conference on Passive Smoking. World Conference on Tobacco or Health, Helsinki, Finland. Sponsored by the Flight Attendant Medical Research Institute Distinguished Professor Award. 21-25 September 2003. Presented Poster, Secondhand Smoke in the Hospitality Industry: Indoor Air Quality Before & After a Smoking Ban, J.L. Repace. 13th Annual Conference, International Society for Exposure Analysis, Stresa, Lago Maggiore, Italy. Sponsored by the Robert Wood Johnson Foundation Innovator Award. 21-25 September 2003. Presented Poster, Modeling and Measuring Indoor Air Pollution from Multiple Cigarettes Smoked in Residential Settings, Wayne Ott and James Repace. International Society for Exposure Analysis, Stresa, Italy. Sponsored by the Flight Attendant Medical Research Institute Distinguished Professor Award. 26 September 2003. Invited Lecture: Secondhand Smoke: Exposure, Dose, Risk, & Control. Tobacco Prevention Working Unit of the National Cancer Institute of Milan. Milan, Italy. Presented with “Certificate of Excellence For Innovation in Smoke Studies.” Sponsored by the Flight Attendant Medical Research Institute Distinguished Professor Award. 30 Sept. 2003. Interview: Smokers' houses sit on market - USA Today, Tuesday, September 30, 2003 By Maureen Milford, The (Wilmington, Del.) News Journal. October 1-3, 2003. Invited Presentation. Secondhand Smoke: The Ventilation Myth, Legal Implications, & Economic Consequences of Exposure. Seminar on the Economics of Tobacco Control, Dublin, Ireland. Sponsored by the Irish Office of Tobacco Control. 3 October 2003. Interview: Expert warns on hazards to workers in pubs. By Dr Muiris Houston, Medical Correspondent. The Irish Times (Dublin).



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7 October 2003. Invited Presentation & Distinguished Service Award: Town Hall Meeting to Clear the Air From Secondhand Smoke. Sponsored by the American Lung Association of Maryland. 14 October 2003. Invited Presentation on Secondhand smoke exposure, risk, control and economics of smoking bans: Sponsored by Smoke-free Indiana program, Valparaiso University, Valparaiso, Indiana. Interview: NW Indiana Times (online): State smoking numbers shocking ... B. Rolek, Times Correspondent. 27-29 October 2003. Consultation for Southeast Health Unit Tobacco Use Prevention Program, Douglas, GA. Presentations in: Statesboro, Douglas, Waycross. 25 November 2003. Interview: Delaware Celebrates First Anniversary of Smokefree Workplace Law - Business good, compliance high; Law will reduce state's high cancer rate News-Journal, Delaware. 28 November 2003. Interview:Smoking ban hurts some businesses, not others. by M. Donegan, Dover (DE) Post. 3 December 2003. Invited testimony before the Tacoma-Pierce County Board of Health re: Regulation prohibiting smoking in public places and places of employment. 4 December 2003. Testimony reported in: The Seattle Times, Metro Edition: “Pierce County adopts sweeping ban on smoking; legal fight ahead, Restaurant association vows to sue,” by S. Daughton, P. 1. 9 December 2003. Interviews with Boston Herald, Radio, etc. on Boston AQ Study. 10 December 2003. Invited Plenary Talk at National Conference on Tobacco or Health: Hospitality Industry Air Quality Before and After Smoking Bans in Wilmington, DE and Boston, MA. Main Session Paper Presented: Smoking Bans in MA Bars and Restaurants – Impact on Air Quality, Workers’ Doses of SHS, and Health. Boston, MA. 11 December 2003. Invited Discussant: “Meet the Experts.” Secondhand Smoke and the Ventilation Myth. National Conference on Tobacco or Health, Boston, MA. 22 December 2003. TV News Interview: New research may bolster workplace smoking bans CTV News (Canada): “Avis Favaro on new research that's putting the dangers of secondhand smoke in much sharper focus.” 2004 20 January 2004. Press Conference: The Black Dog Pub Study – A Failure of Displacement Ventilation to Control Secondhand Smoke, sponsored by Cancer Care Ontario and the Ontario Campaign Against Tobacco. Toronto, Canada. 27 January 2004. Invited Seminar Presentation: Application of ASHRAE Standard 62’s Indoor Air Quality Procedure to ASHRAE-Standard Ventilated Smoking Venues. Session AN04-SEM 47 S2: Standard 62’s Comfort-Only Approach to Smoking Spaces, Winter 2004 Conference, Anaheim, CA. Supported by the Flight Attendant Medical Research Institute Distinguished Professor Award.



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29 January 2004. Invited Presentation: Application of ASHRAE Standard 62’s Indoor Air Quality Procedure to Secondhand Smoke in the Hospitality Industry. The Center for Tobacco Control Research and Education University of California, San Francisco, a World Health Organization Collaborating Center. Supported by the Flight Attendant Medical Research Institute Distinguished Professor Award. 8 February 2004. Interview: On Tobacco Road, It’s a Tougher Sell, by A. Martin. The New York Times, Real Estate. 11 March 2004. Invited Talk, on Secondhand Smoke Exposure and Control, to Interfaith Partnership Campaign Against Tobacco; Press Conference on Assembly Bill 315, “Clean Indoor Air Act,” New Jersey State Legislature, Trenton NJ. Sponsored by New Jersey Breathes, Medical Society of New Jersey. 15 March 2004. Why Air Cleaning Cannot Control Secondhand Smoke. Invited Briefing, NY State Legislative Committee; Press Conference, NY State Legislature, Sponsored by The American Cancer Society, Eastern Region, Albany, NY. 19 April 2004. Invited Article on secondhand smoke: Dagbladet, Oslo, Norway. 20 April 2004. Invited Lecture, Dose-Response and Control Issues for Secondhand Smoke. Presented at the Norwegian National Tobacco Control Conference, Sponsored by The Norwegian Office of Tobacco Control, Oslo, Norway. 26 April 2004. Videoconference Briefing on ESTIMATED MORTALITY FROM SECONDHAND SMOKE AMONG CLUB, PUB, TAVERN, AND BAR WORKERS IN NEW SOUTH WALES, AUSTRALIA, by James L. Repace, MSc. for The Cancer Council of New South Wales, Sydney, Australia. (from Annapolis, MD). 27 April 2004. Videotaped Interview for 7:30 Report, Australian Broadcasting Corporation, Sydney, Australia, on Mortality Among Hospitality Industry Workers in New South Wales. ABC Studio, National Press Club, Washington, DC. 28 April 2004. Video Press Conference Briefing on ESTIMATED MORTALITY FROM SECONDHAND SMOKE AMONG CLUB, PUB, TAVERN, AND BAR WORKERS IN NEW SOUTH WALES, AUSTRALIA, sponsored by The Cancer Council of New South Wales, Sydney, Australia. (from Annapolis, MD), for Australian Press in Sydney, Australia. 12 May 2004. Invited presentation: Translation of Secondhand Smoke Science into Policy. Annual Conference of the Flight Attendant Medical Research Institute: Miami, FL. 19 May 2004. Project Review: Secondhand Smoke in the Hospitality Industry. Annual Meeting of the Innovators’ Combating Substance Abuse Program, Robert Wood Johnson Foundation, Chicago, IL. 19 June 2004. Seeing Through The Smoke. Letter to the Editor supporting over human rights over property rights on secondhand smoke in the Washington, DC, hospitality industry. The Washington Post, Free For All, A21. 27 August 2004. Who’s Protecting Workers’ Health? Letter to the Editor criticizing the White House Office of Management and Budget and the Occupational Safety & Health



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Administration’s abandonment of the proposed rule to regulate secondhand smoke in the workplace. The Washington Post, p. A20. 10-21 September 2004+. Interviews & Stories on my JOEM paper on air pollution in the hospitality industry before and after a smoking ban: NY Times, Washington Post, Associated Press, International Herald Tribune, South China Morning Post, etc. 500+ stories on this work in the 50 top media markets (Radio, TV, Print, Internet) (source: M. Booth & Associates, NYC). Plus press release by the American College of Occupational & Environmental Medicine. 15 September 2004. Presentation to Gwinnett County Special Committee on Smoke-free workplace laws. Lawrenceville, GA, 15 September 2004. 30 September 2004. Legal deposition, in the matter of Thaxton vs. Norfolk Southern Railway et al. (lung cancer from passive smoking). 17-21 October 2004. Presented paper: Indoor and outdoor carcinogen pollution on a cruise ship. 14th Annual Conference of the International Society of Exposure Analysis, Philadelphia, PA. Supported by the Flight Attendant Medical Research Institute Distinguished Professor Award. 19 December 2004. Interview with St. Paul, MN, Pioneer Press (Carried online at TwinCities.com, Pioneer Press), on interpreting nicotine measurements in restaurants in terms of air quality. “No Breathing Room,” by Debra O’Connor. 30 December 2004. Radio Interview on secondhand smoke in casinos on KNPR (88.9 FM), Las Vegas, NV – “State of Nevada,” 1hr. daily public affairs program. 2005 23 March 2005. Testimony on St. Louis County, Missouri, proposed "Indoor Clean Air Act", sponsored by Missouri GASP. TV Interviews: KSDK 5, KMOV 4, KPLR 11. 3 May 2005. Invited seminar on measurements of outdoor air pollution from secondhand smoke. Sponsored by the Dept. of Health Services, University of Maryland Baltimore County, Catonsville, MD. 12 May 2005. Poster Presentation: Rosetta Stone Equations for Predicting Atmospheric & Biomarkers for Secondhand Smoke; Outdoor Air Pollution From Secondhand Smoke; The Bismarck, ND Air Quality Study. 4th Annual meeting of the Flight Attendant Medical Research Institute, Miami Beach, FL May 11-13 2005. 17 May 2005. Invited Lecturer and Panelist: Conférence scientifique: ENJEUX ACTUELS ET TABAGISME. (Scientific Conference on CURRENT ISSUES AND TOBACCO USE.) Organized by the Institut national de santé publique du Québec (Quebec National Public Health Institute), Montreal, Canada. Press Interviews: May 20, Canadian Press; May 19, La Presse; Le Devoir. 19-20 May 2005. Invited Lecturer: The Rosetta Stone Equations for predicting and intercorrelating secondhand smoke atmospheric and biological markers. WORKSHOP ON BIOLOGICAL & ATMOSPHERIC MEASUREMENT OF TOBACCO USE AND



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EXPOSURE IN TRANSDISCIPLINARY RESEARCH, Organized by the Ontario Tobacco Research Unit, University of Toronto. TORONTO, CANADA. 12-15 September 2005. Invited Speaker: Smoke-free Casinos; Plenary Seminar Speaker: Is it Effective? Evaluating your New Smoke-free Law. Clearing the Air: An Institute for Policy Advocacy. Sponsored by the American Nonsmokers’ Rights Foundation. Stanford Sierra Conference Center, Fallen Leaf Lake, California. 13 October 2005. Invited Lecture: Forensic analysis of secondhand smoke exposure, dose, and risk in litigation. Cancer Prevention and Control Network Seminar. Johns Hopkins University Bloomberg School of Public Health. Baltimore, Maryland. 24 October 2005. Invited Testimony, concerning the inability of ventilation to control secondhand smoke and the hazards of smoking rooms to smokers, and Debate with Dr. Chris Proctor, Head of Science & Regulatory Affairs, British American Tobacco, before the Hong Kong Legislative Council on Smoking (Public Health) (Amendment) Bill 2005. Hong Kong Special Administrative Region (SAR), China. 25 October 2005. Invited Discussant at Hong Kong University School of Medicine Press Conference on Hazards of Designated Smoking Rooms to Smokers. Hong Kong SAR, China. 25 October 2005. Seminar Speaker: Secondhand Smoking and Health, Hong Kong Council on Smoking and Health. Hong Kong SAR, China. 26 October 2005. Press Coverage: “Ventilation is no answer to smoke problem: study.” South China Morning Post, by Patsy Moy. “Call for no exceptions to smoking ban”, Hong Kong Standard, by Monday Ng. “Segregation ‘no substitute’ for total smoking ban, China Daily, by Cecelia Lo. + Chinese language dailies. Weds. Oct. 26, 2005. 1 November 2005. Conference presentation:: “Displacement Ventilation Fails to Control Secondhand Smoke: a 3 Pub Air Quality Study.” Indoor Air Pollution, platform session, abstract in Proceedings of the 15th Annual International Society for Exposure Analysis Conference October 30 - November 3, 2005 Tucson, Arizona. 1 November 2005. Coauthor on conference presentation: K. Lee, C.T.C. Okoli, J.L. Repace and E.J. Hahn, “Impact of smoke-free ordinance on indoor particulate levels” presented in the 15th International Society of Exposure Analysis, Oct 30-Nov 3, 2005, Tucson, Arizona, USA. 1 November 2005. Invited seminar on displacement and dilution ventilation and secondhand smoke in casinos. University of Arizona School of Medicine, Tucson, Arizona. 7 November 2005. Invited discussant. UMBC Graduate Student Senate Hearing on Outdoor Smoking Ban, Ellicott City, Maryland.



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8 November 2005. Testimony presented to Prince Georges County, Maryland Council Hearing on CB 68, Smoking Ban in Restaurants & Bars. 21 November 2005. Testimony presented to Howard County, Maryland Council Hearing on CB 71-2005, Smoking Ban in Restaurants & Bars. 2006 10 January 2006. Press Conference on Air Quality in Virginia’s Hospitality Industry; Report on air quality measurements in 12 hospitality venues in the State of Virginia, for Virginians for a Healthy Future (American Lung, American Heart, & American Cancer). Press Richmond Times Dispatch, Virginian Pilot et al., radio interviews,WAMU et al.. Richmond, VA. 3 February 2006. Invited presentation. Health Effects of Secondhand Smoke and Air Pollution in the Virginia Hospitality Industry. Virginia State Board of Health, Richmond, VA. 19 April 2006. Invited Lecture: The Secondhand Smoke Wars: Battles on the Road From Science to Policy. The Spring 2006 Dean’s Lecture, Yale University School of Public Health, New Haven, CT. 21 April 2006. Guest Speaker: The Science of Secondhand Smoke. Smoking S.T.O.P.S. Here – Spring Meeting, University of Maryland, College Park, MD. Sponsored by the Student-Faculty Committee of Campus representatives, State University of Maryland College Campuses. 8 May 2006. Consultation on Secondhand Smoke for the Netherlands Government. 11 May 2006. Participant, FAMRI Distinguished Professor Panel. Annual Meeting, Flight Attendants Medical Research Institute, Cambridge MA. 14 July 2006. Oral presentation: Outdoor Air Pollution From Secondhand Smoke. JL Repace and AA Rupprecht. 13th World Conference on Tobacco Or Health, Washington, DC, July 12-15, 2006. 5 September 2006. Oral Presentation: Secondhand tobacco smoke exposure and dose in Boston Bars and Bartenders. Joint Conference of the International Society of Environmental Epidemiology and the International Society of Exposure Analysis (ISEE/ISEA) International Conference, Paris, France, Sept. 2-6, 2006. 21 September 2006. Invited Presentation. The Science of Secondhand Smoke. Annaul Meeting of The West Virginia Pubic Health Association. Canaan Valley, WV.



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1 Nov. 2006. News Interview, AP New Jersey: Study: New ventilation systems don't clear smoke as touted By LINDA A. JOHNSON, Associated Press Writer, November 1, 2006, 2:46 PM EST. 1 Nov. 2006. Scripps Howard News Service, November 01, 2006, Wednesday 2:36 PM EST. SECTION: DOMESTIC NEWS, LENGTH: 775 words, HEADLINE: Finding a way out of the hazards of smoke filled rooms. BYLINE: LEE BOWMAN, Scripps Howard News Service. 1 Nov. 2006. News Interview, Cincinnati Enquirer: Smoke filters found less effective than bans. BY PEGGY O'FARRELL | ENQUIRER STAFF WRITER. <http://news.enquirer.com/apps/pbcs.dll/article?AID=/20061101/NEWS01/611010400/1077/COL02> 3 Nov. 2006. Radio Interview, The Battle Against Second-Hand Smoke. The Tavis Smiley Show, National Public Radio (727 affiliate stations). <http://www.tavistalks.com/tsradio/index.html>. 6-7 Nov. 2006. Peer Reviewer, Epidemiology of Diseases Associated with Second Hand Smoke Panel Meeting, Flight Attendants Medical Research Institute, 2006 Peer Review Panel Meeting, Chantilly, VA. 2007 15 May 2007. Panelist, Measuring Secondhand Smoke Exposure planning workshop, 6th Annual Scientific Symposium, Flight Attendant Medical Research Institute, Miami, FL May 14-16, 2007. 17 May 2007. Invited Speaker, “Secondhand Smoke: Low Exposures and High Stakes, Forensic Applications of Secondhand Smoke Exposure Analysis.” University of Washington, Seattle. 2007 Oceans to Stars Lecture Series: Environmental Health, Staying Healthy in a Chemical World. Sponsored by the UW Earth Initiative, the UW Water Center and the UW Alumni Association. Seattle, Washington. <http://www.washington.edu/alumni//activities/lectures/2007ocean_0517.html>. 24 May 2007. Invited Speaker, THE SCIENCE OF SECONDHAND SMOKE. Rocky Mountain Tobacco Control Conference, sponsored by the University of Wyoming, Jackson Hole, Wyoming. 18-22 June 2007. Lecturer: 10-hour short course: “Exposure to Secondhand Smoke,” a module in the course, Human Exposure Assessment. A Cyprus Institute Summer Course, June 11-July 20, 2007. Cyprus International Institute Postgraduate Program in Environmental Health. Co-sponsored by Cyprus International Institute for the Environment and Public Health in Association with the Harvard School of Public Health. Nicosia, Cyprus.



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28 June 2007. Participant in Press Conference, Pennsylvania Smoke-Free Workplace Laws Cut Secondhand Smoke by 87 Percent, New Study Proves. Sponsored by the Pennsylvania Alliance to Control Tobacco. Philadelphia, PA. 6 Sept. 2007. Plenary Lecture: Air Quality & Health Benefits of Smoke-free Workplaces. Best of the West Conference, sponsored by Tobacco-Free Arizona. Phoenix, AZ. 18 October 2007. Press Release. 300 NONSMOKING PENNSYLVANIA CASINO EMPLOYEES WILL DIE FROM SECONDHAND-SMOKE ILLNESSES, NEW STUDY SAYS. Pennsylvania Alliance to Control Tobacco, Harrisburg, PA. 23 Oct. 2007. Outdoor Tobacco Smoke Concentrations in Sidewalk Cafes, Cruiseships, and on a College Campus. Point/Counterpoint Symposium: Going Too Far? Exploring the Limits of Smoking Regulation. Tobacco Control Legal Consortium, St. Paul MN 55105. 24 Oct. 2007. Presented Poster: Secondhand Smoke in Casinos: You Bet Your Life. National Conference on Tobacco or Health, October 24-26, 2007, Minneapolis, MN. 31 Oct. 2007. Labor arbitration testimony. Januszewski et al., v. Horseshoe Hammond, USDC, NDIN, Hammond Div., 2:00CV352JM. Chicago, IL. 5 November 2007. News Interview: A New Arena in the Fight Over Smoking: The Home. S. Semrad. The New York Times, National. 2008 15 January 2008. Keynote Speaker, The Science of Secondhand Smoke. Rising Above: The 2008 Tobacco Prevention and Control Statewide Contractor’s Conference, Utah Department of Health, Layton, Utah. 29 February 2008. Testimony on air quality in Connecticut Indian Casinos, on Connecticut Senate Bill SB 419 : "An Act Prohibiting Smoking in Regulated Areas of Casinos". Connecticul Legislature, Hartford, CT. Sponsored by United Autoworkers, Region 9A. 1 March 2008. Interview: Testimony given on smoking ban bill that would apply to casino, By ERICA JACOBSON. The Norwich Bulletin. Posted Mar 01, 2008. 10 March 2008. Invited Lecture: Exposure and Dose from Secondhand Smoke: Workshop on Secondhand Smoke, co-sponsored by the City of Barcelona Health Department, and the Health Sciences Faculty, University of Beira Interior, Portugal. Barcelona, Spain.



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11 March 2008. Briefing for the Director General of Health and Chief Medical Officer for Portugal: Exposure, Dose, Risk, and Control of Secondhand Smoke. Portuguese Health Ministry. Co-Sponsored by the Luso-American Friendship Foundation (FLAD) and the Faculty of Health Sciences at the University of Beira Interior. Lisbon, Portugal. 12 March 2008. Invited Lecture for the Public: Exposure, Dose, Risk, and Control of Secondhand Smoke. Sponsored by the Calouste Gulbenkian Foundation Environmental Programme [Programa Gulbenkian Ambiente], Lisbon, Portugal. 2 September 2008. Testimony in pre-trial hearing, Secondhand smoke exposure and risk in a maximum security prison. In the matter of: Durham v. Hood et al. United States District Court, District of Colorado, Civil Action # 05-CV-01282-MSK-KLM. 7-8 October 2008. Panelist on exposure assessment. Secondhand Smoke Workshop, co-sponsored by the Johns Hopkins Institute for Global Tobacco Control, the University of California, San Francisco Tobacco Smoke Center and the American Academy of Pediatrics Julius B. Richmond Center, Harvard University . 16 Oct. 2008. Presentation of paper: Secondhand Smoke Exposure, Dose, and Risk in Pennsylvania Casinos, 2008 Joint Annual Conference: Exposure and Health in a Global Environment. October 12-16, International Society for Environmental Epidemiology & International Society of Exposure Analysis (ISEA-ISEE) Conference, Pasadena, CA. 14 November 2008. Invited Lecture: Forensic Applications of Secondhand Smoke Exposure Analysis. Center on Democracy, Development, and the Rule of Law, and the Department of Civil & Environmental Engineering, Stanford University, Stanford, CA. 17 November 2008. Invited Lecture: Forensic Applications of Secondhand Smoke Exposure Analysis. Environmental Sciences Graduate Program Seminar Series: Alternative Energy and Environmental Effects & Environmental Health. University of Nevada, Reno. Reno, NV. 2009 27 February 2009. Testimony on Connecticut House of Representatives Bill HB 5608: "An Act Concerning The Issuance of Liquor Permits to Casinos that Permit Smoking in the Casino," evaluating air quality studies at the Mohegan Sun Casino. Sponsored by United Auto Workers, Region 9A, Connecticut General Assembly, Hartford, CT. 6 May 2009. Interview on new NIOSH Health Hazard Evaluation of secondhand smoke in Las Vegas Casinos: Study arms smoking foes. Las Vegas Sun, Las Vegas, NV. 12 May 2009. Presented Poster at the 8th Scientific Symposium of the Flight Attendant Medical Research Institute (FAMRI) May 11-13, 2009: “Measuring Human Exposure to Pollutants from Secondhand Smoke,” L Hildemann, V. Acevedo-Bolton, R Jiang, K-C



-52- July, 10

Cheng, N Klepeis, JL Repace*, and WR Ott. Department of Civil and Environmental Engineering, Stanford University. *Consultant 30 June 2009. News story on my work: Secondhand Smoke Threatens Casino Workers’ Health. By Randy Dotinga, Health Behavior News Service <http://www.cfah.org/hbns/archives/getDocument.cfm?documentID=2035>.

10 September 2009. Pennsylvania Dept. of Health, Press Release on my study of air quality in Pennsylvania’s hospitality industry (commissioned by the Pennsylvania Alliance to Control Tobacco): Pennsylvania’s Clean Indoor Air Act Marks One Year Anniversary: Recent study finds 52 lives in the hospitality industry are saved each year. < http://www.dsf.health.state.pa.us/health/cwp/view.asp?Q=253809&A=190>.

12 November 2009. Labor arbitration testimony, United Auto Workers, Region 9A vs. Foxwoods Casino on November 12, 2009 at the Mashantucket Pequot Reservation, Connecticut.

2010 15 April 2010. Taped interview on Active and Passive Smoking. WMBR 88.1 FM - The MIT Student Radio Station, Cambridge, Massachusetts. 3 May – 5 May 2010. Presented Poster at 9th Scientific Symposium of Flight Attendant Medical Research Institute (FAMRI), Miami FL: Measuring Human Exposure to Pollutants from Secondhand Smoke. Hildemann LM, Acevedo-Bolton V, Jiang RT, Cheng K-C, Klepeis NE, Repace JL, and Ott WR. 12 May 2010. Newspaper Interview. Casinos and regulators blind to smoking rules. By Monica Yant Kinney, Inquirer Columnist. The Philadelphia Inquirer. <http://www.philly.com/inquirer/columnists/monica_yant_kinney/20100512_Monica_Yant_Kinney__Casinos_and_regulators_blind_to_smoking_rules.html#axzz0r4iLTdxd>. 13 July 2010. Internet TV interview on Proposed Smoking Ban in Central Park. What Really Matters NYC. public access TV show hosted and produced by Tony Keevan: http://www.wrmnyc.blogspot.com/.


Publication YearDocument Title Authors ISSN Journal Title2001 Health effects related to environmental tobacco smoke exposure in chidren in the United States: Data from the Third National Health and Nutrition Examination SurveyMannino D.M., Moorman J.E., Kingsley B., Rose D., Repace J. 10724710 Archives of Pediatrics and Adolescent Medicine1980 Indoor air pollution, tobacco smoke, and public health Repace J.L., Lowrey A.H. 368075 Science2004 Respirable particles and carcinogens in the air of Delaware hospitality venues before and after a smoking ban Repace J. 10762752 Journal of Occupational and Environmental Medicine2001 The smoke you don't see: Uncovering tobacco industry scientific strategies aimed against environmental tobacco smoke policiesMuggli M.E., Forster J.L., Hurt R.D., Repace J.L. 900036 American Journal of Public Health1993 An enforceable indoor air quality standard for environmental tobacco smoke in the workplace Repace J.L., Lowrey A.H. 2724332 Risk Analysis2005 Secondhand smoke exposure and risk following the Irish smoking ban: An assessment of salivary cotinine concentrations in hotel workers and air nicotine levels in barsMulcahy M., Evans D.S., Hammond S.K., Repace J.L., Byrne M. 9644563 Tobacco Control1998 Air nicotine and saliva cotinine as indicators of workplace passive smoking exposure and risk Repace J.L., Jinot J., Bayard S., Emmons K., Hammond S.K. 2724332 Risk Analysis2000 Health risks associated with cigar smoking Baker F., Pinney J., Shanks T., Burns D.M., Connolly G.N., Shopland D.R., Ainsworth S.R., Dye J.T., Crammer C., Thun M.J., Hoffmann D., Repace J.L., Henningfield J.E., Slade J.987484 Journal of the American Medical Association2001 Predictors of cotinine levels in US children: Data from the Third National Health and Nutrition Examination Survey Mannino D.M., Caraballo R., Benowitz N., Repace J. 123692 Chest2006 Air pollution in Boston bars before and after a smoking ban Repace J.L., Hyde J.N., Brugge D. 14712458 BMC Public Health1985 A quantitative estimate of nonsmokers' lung cancer risk from passive smoking Repace J.L., Lowrey A.H. 1604120 Environment International2003 Second-hand smoke exposure and blood lead levels in U.S. children Mannino D.M., Albalak R., Grosse S., Repace J. 10443983 Epidemiology1990 Risk assessment methodologies for passive smoking-induced lung cancer Repace J.L., Lowrey A.H. 2724332 Risk Analysis2007 Reduced secondhand smoke exposure after implementation of a comprehensive statewide smoking ban - New York, June 26, 2003-June 30, 2004Bauer U., Juster H., Hyland A., Farrelly M., Engelen M., Weitzenkamp D., Repace J., Babb S.1492195 Morbidity and Mortality Weekly Report2006 Correlating atmospheric and biological markers in studies of secondhand tobacco smoke exposure and dose in children and adultsRepace J., Al-Delaimy W.K., Bernert J.T. 10762752 Journal of Occupational and Environmental Medicine2004 The tobacco industry's political efforts to derail the EPA report on ETS Muggli M.E., Hurt R.D., Repace J. 7493797 American Journal of Preventive Medicine2004 Flying the smoky skies: Secondhand smoke exposure of flight attendants Repace J. 9644563 Tobacco Control1994 Dietary nicotine: Won't mislead on passive smoking ... [19] Repace J.L. 9598146 British Medical Journal1982 TOBACCO SMOKE, VENTILATION, AND INDOOR AIR QUALITY. Repace James L., Lowrey Alfred H. 12505 ASHRAE Transactions2006 Blowing smoke: British American Tobacco's air filtration scheme Leavell N.R., Muggli M.E., Hurt R.D., Repace J. 9598146 British Medical Journal2008 Italy and Austria before and after study: Second-hand smoke exposure in hospitality premises before and after 2 years from the introduction of the Italian smoking banGorini G., Serrahima E., Fondelli M.C., Marcolina D., Giordano L., Charrier L., Piccinelli C., Coppo A., Di Stefano F., D'Elia P., Molinar R., Moshammer H., Krauss P.R., Ruprecht A., Invernizzi G., Centrich F., Sbrogio L., Gasparrini A., Nebot M., Neuberger M., Tamang E., Lopez M.J., Galeone D.9056947 Indoor Air2006 Risks for heart disease and lung cancer from passive smoking by workers in the catering industry Hedley A.J., McGhee S.M., Repace J.L., Wong L.-C., Yu M.Y.S., Wong T.-W., Lam T.-H.10966080 Toxicological Sciences1982 Indoor air pollution Repace J.L. 1604120 Environment International2005 Environmental Tobacco Smoke (ETS) exposure in Florence hospitality venues before and after the smoking ban in Italy [2] (multiple letters)Gorini G., Gasparrini A., Fondelli M.C., Costantini A.S., Centrich F., Lopez M.J., Nebot M., Tamang E., Repace J.10762752 Journal of Occupational and Environmental Medicine1985 An indoor air quality standard for ambient tobacco smoke based on carcinogenic risk Repace J.L., Lowrey A.H. 287628 New York State Journal of Medicine2000 Banning outdoor smoking is scientifically justifiable. Repace J. 9644563 Tobacco control1987 Predicting the lung cancer risk of domestic passive smoking. Repace J.L., Lowrey A.H. 30805 American Review of Respiratory Disease1999 The effect of cigar smoking on indoor levels of carbon monoxide and particles Klepeis N.E., Ott W.R., Repace J.L. 10534245 Journal of Exposure Analysis and Environmental Epidemiology1987 Indoor concentrations of environmental tobacco smoke: field surveys. Repace J.L. 3005038 IARC scientific publications2006 Exposure to second-hand smoke air pollution assessed from bar patrons' urinary cotinine Repace J., Hughes E., Benowitz N. 14622203 Nicotine and Tobacco Research1987 Indoor concentrations of environmental tobacco smoke: models dealing with effects of ventilation and room size. Repace J.L. 3005038 IARC scientific publications1981 The problem of passive smoking Repace J.L. 287091 Bulletin of the New York Academy of Medicine: Journal of Urban Health2004 Assessment of sources of second-hand smoke exposure in a putatively unexposed population Hyde J.N., Brugge D., Repace J., Rand W. 39896 Archives of Environmental Health1987 Environmental tobacco smoke and indoor air quality in modern office work environments. Repace J.L., Lowrey A.H. 961736 Journal of Occupational Medicine2009 Secondhand smoke in Pennsylvania casinos: A study of nonsmokers' exposure, dose, and risk Repace J.L. 900036 American Journal of Public Health1991 Observational vs extrapolative models in estimating mortality from passive smoking [4] Repace J.L., Lowrey A.H. 1604120 Environment International1989 Passive smoking is risky. Repace J.L. 988421 Journal of the American Medical Women's Association1988 Comment on "estimation of effect of environmental tobacco smoke on air quality within passenger cabins of commercial aircraft"Repace J.L. 0013936X Environmental Science and Technology1985 Passive smoking has no place in the workplace Repace J.L. 8203946 Canadian Medical Association Journal1984 Consistency of research data on passive smoking and lung cancer Repace J.L. 1406736 Lancet1982 Nonsmokers and cigarette smoke: A modified perception of risk Repace J.L., Lowrey A.H. 368075 Science1977 RADIATION-INDUCED INCREASE OF MOBILE SODIUM IN MOS CAPACITORS. Repace James L. 189499 IEEE Transactions on Nuclear Science2010 Measurement of fine particles and smoking activity in a statewide survey of 36 California Indian casinos Jiang R.O.-T., Cheng K.I.-C., Acevedo-Bolton V., Klepeis N.E., Repace J.L., Ott W.R., Hildemann L.M.15590631 Journal of Exposure Science and Environmental Epidemiology2009 Secondhand smoke in Pennsylvania casinos: A study of nonsmokers' exposure, dose, and risk (American Journal of Public Health (2009) 99 (1478-1485) DOI: 10.2105/AJPH.2008.146241)Repace J.L. 900036 American Journal of Public Health1995 Tobacco, history, and the AMA [17] Glantz S.A., Repace J.L. 1406736 Lancet1995 A rebuttal to tobacco industry criticism of 'an enforceable indoor air quality standard for environmental tobacco smoke' [3]Repace J.L., Lowrey A.H. 2724332 Risk Analysis1992 Is the dose-response curve between tobacco smoke exposure and lung cancer linear from active to passive smoking?Repace J.L. 1604120 Environment International1990 Rebuttal to Lee/Katzenstein commentary on passive smoking risk Repace J.L., Lowrey A.H. 1604120 Environment International1986 A rebuttal to criticism of the phenomenological model of nonsmokers' lung cancer risk from passive smoking Repace J.L., Lowrey A.H. 8828164 Journal of Environmental Science and Health - Part C Environmental Carcinogenesis Reviews1986 A rebuttal to criticism of 'A quantitative estimate of nonsmokers' lung cancer risk from passive smoking' Repace J.L., Lowrey A.H. 1604120 Environment International1983 MODELING EXPOSURE OF NONSMOKERS TO AMBIENT TOBACCO SMOKE. Repace James L., Lowrey Alfred H. 994081 Proceedings, Annual Meeting - Air Pollution Control Association1978 RADIATION EFFECTS IN ION-IMPLANTED SOS CAPACITORS WITH NEGATIVE CHARGE. Repace James L. 189499 IEEE Trans Nucl Sci1978 EFFECT OF IONIZING RADIATION ON MOBILE ION CURRENT PEAKS IN MOS CAPACITORS. Repace James L. 189383 IEEE Transactions on Electron Devices1978 The effect of process variations on interfacial and radiation-induced charge in silicon-on-sapphire capacitors Repace J.L., Goodman A.M. 189383 IEEE Transactions on Electron Devices

This is a citation overview for a set of 54 documents.Self Citations of all authors are excluded.

h index = 13 (Of the 54 documents considered for the h-Index, 13 have been cited at least 13 times.)Note: Scopus does not have complete citation information for articles published before 1996.

798 cites in 14 years = 57 cites/year59


Volume Issue 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 total155 1 0 0 0 0 0 1 7 6 9 6 11 16 16 14 1 87208 4443 8 3 3 5 1 7 6 5 10 3 6 6 8 6 1 78

46 9 0 0 0 0 0 0 0 0 1 1 10 19 14 18 6 6991 9 0 0 0 0 0 0 7 8 10 9 10 4 7 9 0 6413 4 6 4 2 2 2 4 7 5 6 5 4 3 5 4 0 5914 6 0 0 0 0 0 0 0 0 0 0 6 20 15 15 0 5618 1 0 0 0 6 3 5 10 5 5 4 2 1 4 5 0 50

284 6 0 0 0 0 0 3 5 8 4 7 3 5 8 3 0 46120 3 0 0 0 0 0 0 0 4 4 4 7 7 5 5 1 37

6 0 0 0 0 0 0 0 0 0 0 0 1 10 19 3 3311 1 3 5 3 1 2 3 2 3 2 1 0 1 2 0 0 2814 6 0 0 0 0 0 0 0 0 2 4 3 3 2 5 0 1910 1 1 2 2 1 1 2 2 0 2 0 1 0 0 1 0 1556 28 0 0 0 0 0 0 0 0 0 0 0 1 3 8 0 1248 2 0 0 0 0 0 0 0 0 0 0 3 3 4 2 0 1226 2 0 0 0 0 0 0 0 0 2 3 2 2 1 2 0 1213 1 0 0 0 0 0 0 0 0 3 1 1 1 2 2 0 10

308 6920 1 1 0 2 0 3 1 0 2 0 0 0 0 0 0 1088 1 3 1 1 1 1 0 2 0 0 0 0 0 0 1 0 10

332 7535 0 0 0 0 0 0 0 0 0 0 0 2 6 1 0 918 4 0 0 0 0 0 0 0 0 0 0 0 0 2 6 0 890 2 0 0 0 0 0 0 0 0 0 0 0 2 2 4 0 8

8 1-6 2 0 0 0 0 0 0 0 0 0 4 1 0 1 0 847 12 0 0 0 0 0 0 0 0 0 0 1 3 1 2 0 785 7 0 0 0 1 0 1 2 1 0 2 0 0 0 0 0 7

9 1 0 0 0 0 0 0 1 0 1 0 1 1 0 1 1 6136 5 1 1 0 0 0 1 2 1 0 0 0 0 0 0 0 6

9 6 0 0 0 0 0 0 0 1 3 0 1 0 0 0 0 581 2 0 0 1 0 0 1 1 0 0 0 0 0 0 0 5

8 5 0 0 0 0 0 0 0 0 0 0 0 2 2 0 0 481 0 0 0 1 0 0 0 0 0 0 0 0 1 1 0 3

57 10 0 0 0 0 0 0 1 1 0 0 0 0 0 1 0 359 11 0 0 0 0 0 0 0 0 0 0 0 0 1 1 0 229 8 0 0 0 0 0 0 0 1 0 0 0 0 1 0 0 299 8 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 117 4 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 144 2 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 122 10 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 1

133 8 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 11 8375 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 1

215 4529 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 1NS-24 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 1

Journal of Exposure Science and Environmental Epidemiology 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 099 10 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

346 8973 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 015 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 018 4 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 016 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

4 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 012 1-4 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

4 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0NS-25 6 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0ED-25 4 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

25 8 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Total 29 19 11 22 10 30 58 50 66 50 76 104 122 138 13 798

8778696459



Smoke Infiltration Study Repace Associates, Inc.

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BACKGROUND: Mr. David Schuman resides at 11 Q Ridge Road, Greenbelt, MD 20770 in a cooperative association, Greenbelt Homes, Inc. (GHI). His unit is one of eight individual units in a connected row, brick construction with slate roof, built in the late 1930s. His unit adjoins the unit of his neighbors, the Popovics, who own Unit R. These neighbors are smokers. Mr. Schuman does not smoke. Nor does his neighbor on the other side of Mr. Schuman’s unit. Mr. Schuman relates that for many years, his neighbors have smoked inside and outside their unit. Conditions have been very bad on occasion but inconsistently so. In recent months, particularly over the winter, conditions became intolerable for him on a more regular basis. He complains of a heavy smoke smell on most nights. On occasion, he was forced to open his windows during winter to dissipate accumulating secondhand smoke (SHS) infiltrating from Unit R. He became ill with bronchitis-like symptoms for several months and visited the doctor twice. Mr. Schuman states that the odor of SHS smoke was heaviest at the kitchen cabinet nearest the refrigerator near the electrical junction box. Occasionally, there was a heavy smoke smell in the downstairs bathroom and in the closet under the stairway. On these occasions, the smoke permeated the apartment. Mr. Schuman complained that the SHS was particularly bad most regularly between 6 and 11 p.m. during weekdays, and later on weekends. When his neighbors opened their service side kitchen window there was a heavy smoke smell on the common pathway leading to his apartment. He says that the smoke entry seemed worst during the winter months when all the windows in his apartment were closed and the apartment was heated. Mr. Schuman asserts that he made repeated attempts to remedy the situation, because he cannot continue to live with smoke entering his apartment. The following attempts proved futile: He sealed the area around the junction box to the best of his ability. He repeatedly contacted the neighbors and the Greenbelt cooperative association. He met with his neighbor and the association. He states that none of these efforts were successful, and remains very concerned about the health effects of the smoke. Throughout this time, his neighbors have maintained that it is their



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right to smoke as they wish in their apartment. Figure 1 shows the adjacent units Q and R.

Figure 1. Units 11 Q and 11 R Ridge Road share a common wall. View shows Common pathway between units Q (left) and Unit R (right) from service side. Qualifications: I have been retained by Mr. Schuman to measure the level of SHS in his unit and to evaluate his acute and chronic risk from SHS exposure. I hold a MSc. in physics from the Polytechnic University of New York, and am a biophysicist and an international secondhand smoke consultant who has published 75 scientific papers on the hazard, exposure, dose, risk, and control of secondhand smoke, and have conducted numerous field studies of SHS. For my work on SHS, I have received several national honors, including the Flight Attendant Medical Research Institute Distinguished Professor Award, the Robert Wood Johnson Foundation Innovator Award, the Surgeon General’s Medallion, and a Lifetime Achievement Award from the American Public Health Association. I hold an appointment as a Visiting Assistant Clinical Professor at the Tufts University School of Medicine. I am a former senior policy analyst



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and staff scientist with the U.S. Environmental Protection Agency in Washington, DC. I served as a consultant to the Occupational Safety and Health Administration, U.S. Department of Labor, on its proposed rule to regulate secondhand smoke and indoor air quality. I served as a research physicist at the Naval Research Laboratory in the Ocean Sciences and Electronics Divisions, and as a health physicist at Delafield Hospital on the health physics staff of the City of New York, and in the Thyromedical Clinic at Grasslands Hospital, Westchester County, NY. A CV, a list of my publications and presentations, and numerous downloadable reports on secondhand smoke are available on my website: <www.repace.com> METHODS: Advances in air sampling have resulted in the development of a variety of inexpensive and accurate active and passive monitors for measuring nicotine in indoor environments and for personal monitoring. I obtained such a passive monitor from the laboratory of Prof. S. K. Hammond at the School of Public Health, University of California at Berkeley. Dr. Hammond’s monitor collects nicotine by passive diffusion to a filter treated with sodium bisulfate, and the deposit on the filter is analyzed by gas chromatography. The monitor is obtained from the laboratory in a sealed container, and begins measuring nicotine from the time it is removed from the container until the time it is replaced in the sealed container. Figure 2 shows the monitor hanging from a lamp (Hammond and Leaderer, 1987; Leaderer and Hammond, 1991).



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Figure 2. The Hammond Passive Nicotine Diffusion Monitor.

MEASUREMENTS: After being contacted by Mr. Schuman, I provided him with a passive nicotine monitor to assess the level of SHS infiltration into his unit. The passive nicotine monitor was obtained from the laboratory of Professor S. Katherine Hammond of the University of California, Berkeley. Figure 2 shows a close-up of the passive nicotine monitor. I instructed Mr. Schuman to deploy the monitor as follows:

Enclosed is a passive nicotine monitor. Please remove it from its container, and hang it up behind a counter in the room where you smell the smoke. As soon as you open the container, print the Start time of day and the date on the lid with fine point magic marker, or on the label as this is the start of the nicotine collection time. Leave the monitor in place for approximately 1 month. Do not permit anyone to smoke in your store during this time, as it will compromise the test. After this period, return the monitor to its container, record the Stop date and time on the lid or label again, and replace the lid and seal it with scotch tape. Express mail it to Mr. Charles Perrino at the following address, along with a check for $100 made out to “UC Regents”: Mr. Charles Perrino c/o: Hammond Lab UC Berkeley - School of Public Health 353 Mulford Hall - MC #7352 Berkeley, CA 94720-7352 Phone #: 510-643-0296 [email protected]

Mr. Schuman deployed the monitor in the kitchen of his home for the period 3/2/09, 5:45 p.m. (start), to 4/5/09, 2 p.m., a duration of 33.16 days, as follows:

“3/2/09, 5:45 p.m., hung monitor from kitchen cabinet handle nearest location where heaviest smoke seems to enter (near junction box), per instructions from Mr. James Repace, biophysicist, e-mail dated 3/2/09. 3/2/09-4/5/09 no smokers in my apartment. Heavy smoke smell in kitchen near cabinet closest refrigerator, occasionally bathroom and closet under stairs, usually on weekday evenings between 6 p.m. and 11 p.m., later on weekends. When neighbors' service side window open, heavy smoke smell walking up pathway to enter apartment. Seems worse during winter months when heating apartment.



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4/5/09, 2 p.m., removed monitor, placed in canister, sealed with scotch tape, put into mailing box, sealed with packaging tape.”

Figure 3. The nicotine monitor deployed in Mr. Schuman’s kitchen.

Figure 4. An Excel file showing the results of the monitor from the laboratory, 0.05 of nicotine micrograms per cubic meter.



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Assuming smoking occurred for ~5 hours daily on weekdays and ~6 hours daily on weekends, the monitor was exposed to SHS for 26.16 days on weekdays for 26.16 x 5 = 130.8 hours, and for 9 days on weekends for an additional 9 x 6= 54 hours, for a total estimated exposure time of 184.8 hours out of 35.16 days at 24 hours/day = 843.84 hours. Adjusting for exposure duration, the monitor was exposed to SHS for an estimated 184.8/843.84 = 21.9% of the time. Thus the adjusted airborne nicotine concentration is 0.05 micrograms per cubic meter (µg/m3)/0.219 = 0.23 µg/m3. This nicotine exposure may be converted into an absorbed dose of the nicotine metabolite cotinine as follows: Using the Rosetta Stone conversion equation, this corresponds to a 24-hour average serum cotinine equivalent of P = HN/167 = (24)(0.23)/167 = 0.033 nanograms per milliliter (ng/ml) (Repace, Al-Delaimy and Bernert, 2006). This conversion is for the purposes of risk assessment. The nicotine value can also be transformed into an estimated exposure to fine particles from SHS by the equation SHS-RSP = 10 x SHS-nicotine = 2.3 µg/m3, using a ratio of ten-to-one between RSP and nicotine from SHS (Repace and Lowrey, 1993). This transformation is for the purposes of odor and irritation assessment. Risk Assessment:

Concepts of Regulatory Risk. Involuntarily imposed population risks from SHS can be compared to societal standards for permissible human exposures to environmental carcinogens such as industrial chemical emissions and radionuclides in air and drinking water, solvent residues in beverages, and carcinogenic molds and pesticide residues in food. Several U.S. federal regulatory agencies promulgate regulations and standards to protect the public from exposure to environmental carcinogens. It is of interest to inquire as to what levels of population cancer risk typically trigger regulation, what levels are beneath regulatory concern, and how consistently they are applied among various federal agencies. Travis et al.(1990) reviewed the use of cancer risk estimates in prevailing U.S. federal standards and in withdrawn regulatory initiatives, to determine the relationship between risk level and regulatory action in 132 U.S. federal regulatory decisions of record. Travis et al. describe a technical risk assessment term:



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de minimis risk. De minimis risks are so low that agencies almost never acted to reduce them. For various reasons, chronic mortality risks falling above this level were regulated in some cases but not in others; however, residual risks after control are generally de minimis. Travis et al. found that de minimis risk was 1 x 10-6 (1 death per lifetime per million persons at risk). This concept can be used to evaluate the level of risk from secondhand smoke. CHRONIC RISK. Both the Surgeon General (2006) and the California EPA (2006) state that SHS is a cause of fatal heart disease and lung cancer. This chronic risk may be quantified using exposure response relationships relating SHS nicotine to risk published in the peer-reviewed scientific literature and compared to federal decision rules for regulating hazardous air pollutants as follows: Repace, Jinot, Bayard, et al. (1998) associated an average serum cotinine level of 0.4 ng/ml with a 40-year working lifetime (WLT40) increase in SHS-induced mortality in the United States from lung cancer of 1 death per 1000 person-years (PY) at risk, and 1 death in 100 PY at risk for heart disease, giving a combined total risk of 11 deaths per 1000 PY of exposure. Applying this dose-response relationship to Mr. Schuman’s exposure yields an estimated: (0.033 ng/ml)(11 deaths/1000 PY- 0.4 ng/ml) = 91 deaths per 100,000 persons at risk per working lifetime. By comparison, the federal de minimis risk level for environmental agents in air or water (below which risks are considered “beneath regulatory concern”) is 1 death per 1,000,000 persons per working lifetime (Repace, Jinot, Bayard, et al., 1998). Thus, to put Mr. Schuman’s chronic risk into perspective, his exposure is equivalent to an excess risk from SHS-exposure in Unit Q of (91 x 10-5 deaths)/(1 death x 10-6) = 910 times the federal de minimis risk level. Moreover, the federal de manifestis (obvious) risk level, above which risks are invariably regulated, is 9.1 deaths per 10,000 persons at risk per lifetime. Mr. Schuman’s SHS exposure, rounded to one significant figure, is 3 times the level that constitutes a de manifestis risk. This is quite a significant risk. Table ES.2 shows that there are an estimated 50,000 deaths annually from SHS exposure (CalEPA, 2006).



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Table 3 lists the numerous health effects from SHS (CalEPA, 2006), including Mr. Schuman’s chronic respiratory symptoms.

Table 3. Health Effects From SHS (Environmental Tobacco Smoke) Exposure

(CalEPA, 2006).



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ACUTE RISK. In addition to the chronic risks, SHS has a number of acute risks as well: Acute Respiratory Effects: According to the Surgeon General (2006), SHS causes acute respiratory effects:

• SHS contains many chemicals that can quickly irritate and damage the lining of the airways.

• Even brief exposure can trigger respiratory symptoms, including cough, phlegm, wheezing, and breathlessness.

• Brief exposure to SHS can trigger an asthma attack in children with asthma.

• Persons who already have asthma or other respiratory conditions are at especially high risk for being affected by SHS, and should take special precautions to avoid SHS exposure.

Acute Cardiovascular Effects: According to the Surgeon General (2006), SHS causes heart disease:

• Breathing SHS for even a short time can have immediate adverse effects on the cardiovascular system, interfering with the normal functioning of the heart, blood, and vascular systems in ways that increase the risk of heart attack.

• Even a short time in a smoky room can cause blood platelets to become stickier, damage the lining of blood vessels, decrease coronary flow velocity reserves, and reduce heart rate variability.

• Persons who already have heart disease are at especially high risk of suffering adverse affects from breathing SHS, and should take special precautions to avoid even brief exposure.



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Odor and irritation: SHS is highly irritating: nearly three-fourths of nonsmokers are disturbed by smoky air (Weber and Grandjean, 1987). The median threshold for sensory irritation (eye, nasal, and throat), i.e. the level at which half of the exposed population will exhibit acute irritation symptoms of SHS exposure, is 4.4 µg/m3 for SHS-RSP. This means that half of an exposed nonsmoking population of healthy normal persons will be irritated at SHS-RSP levels less than 4.4 µg/m3. Further at this 4.4 µg/m3 level of SHS-RSP, 67% of the nonsmokers judge the air quality to be unacceptable (Junker et al., 2001). The median offensive odor-detection threshold is ~1 µg/m3. This means that half of an exposed nonsmoking population will be find SHS-RSP to be offensive at levels less than 1 µg/m3. Mr. Schuman’s estimated SHS-RSP exposure is 2.3 µg/m3, which is in the range of irritation and well above the median level for offensive SHS odor as well. Ventilation and Infiltration in Multi-family Dwellings: How does SHS migrate from one row-house to another? Tobacco smoke generated in one part of a structure may migrate to another part of the structure by airflows through the structure or through the windows from tobacco smoke generated outside the structure. Apartments are ventilated partly by uncontrolled infiltration (unintended airflows through the building envelope into the dwelling) and natural ventilation (operable windows). Intermittently operated bathroom and kitchen exhaust fans cause temporary increases in ventilation and infiltration rates. Leakage in the ductwork of intermittent forced air heating and air conditioning systems and pressurization and depressurization of individual rooms can drive infiltration and exfiltration (unintended airflows through the building envelope out of the dwelling). During the heating season, air flow in heated multilevel buildings may occur from lower levels to upper levels via a chimney effect. Cool outdoor air infiltrates in at the lower levels due to strong indoor-outdoor temperature differences, and flows upward as it warms, exfiltrating from upper levels. In the cooling season, when the building is cooled by air conditioning, the airflow direction can reverse; however, downward airflow will be less pronounced due to lesser indoor-outdoor temperature differences in warm weather than in cold. Mechanical ventilation can reduce or overwhelm the upward buoyancy-driven air flow. In addition, there are horizontal flows between attached structures or apartments, through unintentional openings in walls and floors, and these flows may be driven by mechanical ventilation



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systems, buoyancy, and wind. The vertical and horizontal airflows between apartments or attached structures will transport pollutants as well as air; thus, occupants may be exposed to pollutants such as tobacco smoke from other units. (IOM, 2000). In other words, SHS can migrate through apparently solid walls through a variety of openings and crevices, driven by diffusion, fans, wind pressure, and temperature differences. • Public Policies on SHS in Multifamily Dwellings: The 2006 Surgeon General’s Report on Secondhand Smoke states that as evidence regarding the health effects of secondhand smoke has accumulated, there has been growing concern about the impact of secondhand smoke exposure in multi-unit housing, including commercially owned apartments and condominiums, as well as public housing. This concern is based upon the fact that secondhand smoke from one unit in a multi-unit housing complex can seep into an adjoining unit through shared air spaces or shared ventilation systems. • • The main approach for addressing this issue has been education of landlords and property managers with the goal of having them implement voluntary no-smoking policies. In some cases, tenants have also taken legal action to achieve this outcome (Sweda 2004). These policies may apply to common spaces within the housing complex (such as lobbies, corridors, stairwells, elevators, laundry rooms, community rooms, and recreational areas), housing units rented to new tenants, or housing units rented to both new and existing tenants.

According to the Surgeon General (2006), until recently, landlords and property managers have been reluctant to restrict smoking in multi-unit housing because of concerns about the legality of doing so and because of the perception that regulating tenants’ smoking may constitute an intrusion on their privacy. However, tenants who live in multi-unit housing have certain legal obligations and rights. These obligations and rights in many cases make it possible for landlords and property managers to restrict or eliminate smoking in apartments and for nonsmoking tenants to obtain relief from secondhand smoke seepage from adjoining units.

In addition to protecting tenants from secondhand smoke exposure and

avoiding legal action by nonsmokers who experience secondhand smoke seepage from neighboring units, landlords and property managers are in some cases motivated by additional factors, such as reductions in



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maintenance, cleaning costs, burns, fire danger, and property insurance premiums. Several organizations are providing information and technical assistance to landlords to encourage them to implement smoking restrictions in apartments and condominiums and are working with landlords to publicize smoke-free rentals through Web site listings (e.g., <http://www.smokefreeapartments.org>; <http://www.tcsg.org/sfelp/apartment.htm>; <http://www.mismokefreeapartment.org>).

A recent review of legal rulings in this area found that landlords, condominium associations, and other multi-unit property holders may prohibit smoking for new, and in many cases existing, occupants (Schoen-marklin 2004). Courts do not recognize a legal right to smoke in such dwellings, whether the dwelling is publicly or privately owned. In addition, residents of multi-unit dwellings have access to common law remedies for stopping secondhand smoke infiltration, including local safety and health codes. If a resident of a multi-unit dwelling can demonstrate that secondhand smoke exposure limits a major life activity, the federal Fair Housing Act of 1992 can be used to end the secondhand smoke incursion. Landlords and building owners can prohibit smoking in apartments and condominiums, protecting them from lawsuits related to secondhand smoke infiltration (Schoenmarklin 2004).

Similarly, a review of potential legal remedies for tenants affected by secondhand smoke seepage concluded that state regulations, such as sanitary codes, provide general language for protecting the health of residents in multi-unit buildings (Kline 2000). Tenants can also use traditional claims of nuisance, warranties of habitability, and the right of quiet enjoyment.

The general health protection language of state regulations, along with evidence of the harmful effects of exposure to secondhand smoke, gives state agencies authority to regulate secondhand smoke infiltration between apartments in multi-unit dwellings. In states where regulations do not exist, other legal remedies may be available, many premised on the existence of a harm to the nonsmoking resident (Kline 2000). In addition, residents who can prove that they have a disability, including multiple chemical sensitivity disorder or environmental illness, which is affected by exposure to secondhand smoke, have recourse under the Fair Housing Act of 1992 (Schoenmarklin 2004).



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In 2005, a housing court jury in Boston, Massachusetts, ruled that a couple could be evicted from a rented apartment based on other tenants’ complaints that the secondhand smoke they generated was seeping into adjoining apartments (Ranalli and Saltzman 2005). The jury found that the couple’s heavy smoking violated a clause that prohibited “any nuisance; any offensive noise, odor or fumes; or any hazard to health.” They made this ruling even though the landlord had not included a specific nonsmoking clause in the lease. Some government bodies have taken steps to regulate smoking in private multi-unit housing settings. For example, several cities in Alameda County, California, have local ordinances in place requiring that common areas in multi-unit housing be smoke-free (Chen 2005). Under a local ordinance declaring SHS to be a “nuisance,” a couple in Dublin, CA obtained a temporary restraining order against a chain-smoking neighbor to deal with secondhand smoke infiltration. With the order, signed in March by Alameda County Superior Court Judge Charles Smiley, the couple got permission to call the police to enforce the order or to arrest the neighbor. The couple said their neighbor would chain smoke outside and the smoke, which the couple was allergic to, would travel into their unit. It would also travel into their apartment when he smoked with his bathroom vent on. The court order prohibited a neighbor from smoking within 25 feet of their residence, or in any room in the apartment complex that shared an air duct or ventilation system with their unit. A Utah law stipulates that residential unit rental and purchase agreements may prohibit generation of tobacco smoke (Utah Condominium Ownership Act 2005). Thus, SHS infiltration is beginning to be recognized as both a health and welfare threat by courts and legislatures around the country.

Conclusions:

1. Secondhand smoke (SHS) was measured via a passive nicotine monitor in Mr. Schuman’s townhouse for approximately one month. Nicotine was detected, indicating the presence of SHS at significant levels.

2. The average nicotine level was evaluated using a published dose/response relationship for chronic mortality from SHS-induced lung cancer and heart disease.

3. Mr. Schuman’s average daily SHS-nicotine exposure produces an estimated excess chronic mortality risk that exceeds by 910 times the de minimis risk level used by U.S. Environmental Protection Agency



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for hazardous air pollutants, 910 times the federal de minimis risk level, and is triple the level that constitutes a de manifestis or obvious risk by federal regulatory standards. This is quite a significant risk..

4. The U.S. Surgeon General has stated “there is no safe level of SHS exposure.”

5. The U.S. Centers for Disease Control has stated that “Even brief SHS exposure increases risk of heart attack or cancer.”

6. The California Environmental Protection Agency has stated that SHS can produce chronic respiratory symptoms in adults.

7. I conclude, to within a reasonable degree of scientific certainty, that Mr. Schuman is exposed to unhealthy levels of secondhand smoke from a cigarette smoker in his neighboring townhouse, that poses both acute and chronic hazards, and that is irritating and malodorous as well.

8. Attempts to remedy the situation by sealing openings between the premises have been unsuccessful.

9. This unhealthy SHS infiltration condition can only be remedied by elimination of smoking in the interior of the neighboring townhouse.

Signed

James Repace, MSc. 4/28/2009



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• References CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY. (2006). Health Effects of Exposure to Environmental Tobacco Smoke, Final Report. Office of Environmental Health Hazard Assessment. Chen S. State of Tobacco Control in Alameda County 2004. Emeryville (CA): American Lung Association of the East Bay, 2005. Hammond SK, Leaderer BP. A diffusion monitor to measure exposure to passive smoking. Environ Sci Technol 1987;21:494–7. IOM. Impact of Ventilation and Air Cleaning on Asthma, Chapter 10, R. Diamond. Clearing the Air – Asthma and Indoor Air Exposures. Institute of Medicine, National Academy of Sciences. National Academy Press, Washington, DC, 2000. Junker MH, Danuser B, Monn C, Koller T. Acute sensory responses of nonsmokers at very low environmental tobacco smoke concentrations in controlled laboratory settings. Environmental Health Perspectives. 2001;109:1045-1052. Kazmi S. Dublin couple may have set anti-smoking precedent, Valley Times, Article Last Updated: 10/27/2008 07:11:26 AM PDT. http://www.insidebayarea.com/ trivalleyherald/localnews/ci_10823336 downloaded 10/30/2008. Kline RL. Smoke knows no boundaries: legal strategies for environmental tobacco smoke incursions into the home within multi-unit residential dwellings. Tobacco Control 2000;9(2):201–5. Leaderer BP, Hammond SK. Evaluation of vapor-phase nicotine and respirable suspended particle mass as markers for Environmental Tobacco Smoke. Environ Sci Technol 1991;25:770–7. Ranalli R, Saltzman J. Jury finds heavy smoking to be grounds for eviction: verdict is said to be one of first in nation. Boston Globe June 16, 2005. Repace JL, Jinot J, Bayard S, Emmons K, and Hammond SK. Air nicotine and saliva cotinine as indicators of passive smoking exposure and risk. Risk Analysis 18: 71-83 (1998). Schoenmarklin S. Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings. A Law Synopsis by the Tobacco Control Legal Consortium, April 2004. <http://www.tcsg.org/sfelp/condos.htm>. Surgeon General. Centers for Disease Control and Prevention (2006), Coordinating Center for Health Promotion, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, The health consequences of involuntary exposure to tobacco smoke: A report of the Surgeon General, Atlanta, GA, 2006.



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Sweda EL Jr. Lawsuits and secondhand smoke. Tobacco Control 2004;13(Suppl I):i61–i66.

•




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BACKGROUND: Mr. David Schuman resides at 11 Q Ridge Road, Greenbelt, MD 20770 in a cooperative association, Greenbelt Homes, Inc. (GHI). His unit is one of eight individual units in a connected row, brick construction with slate roof, built in the late 1930s. His unit adjoins the unit of his neighbors, the Popovics, who own Unit R. These neighbors are smokers. Mr. Schuman does not smoke. Nor does his neighbor on the other side of Mr. Schuman’s unit. Mr. Schuman relates that for many years, his neighbors have smoked inside and outside their unit. Conditions have been very bad on occasion but inconsistently so. In recent months, particularly over the winter, conditions became intolerable for him on a more regular basis. He complains of a heavy smoke smell on most nights. On occasion, he was forced to open his windows during winter to dissipate accumulating secondhand smoke (SHS) infiltrating from Unit R. He became ill with bronchitis-like symptoms for several months and visited the doctor twice. Mr. Schuman states that the odor of SHS smoke was heaviest at the kitchen cabinet nearest the refrigerator near the electrical junction box. Occasionally, there was a heavy smoke smell in the downstairs bathroom and in the closet under the stairway. On these occasions, the smoke permeated the apartment. Mr. Schuman complained that the SHS was particularly bad most regularly between 6 and 11 p.m. during weekdays, and later on weekends. When his neighbors opened their service side kitchen window there was a heavy smoke smell on the common pathway leading to his apartment. He says that the smoke entry seemed worst during the winter months when all the windows in his apartment were closed and the apartment was heated. Mr. Schuman asserts that he made repeated attempts to remedy the situation, because he cannot continue to live with smoke entering his apartment. The following attempts proved futile: He sealed the area around the junction box to the best of his ability. He repeatedly contacted the neighbors and the Greenbelt cooperative association. He met with his neighbor and the association. He states that none of these efforts were successful, and remains very concerned about the health effects of the smoke. Throughout this time, his neighbors have maintained that it is their right to smoke as they wish in their apartment. Figure 1 shows the adjacent units Q and R.



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Figure 1. Units 11 Q and 11 R Ridge Road share a common wall. View shows Common pathway between units Q (left) and Unit R (right) from service side. Qualifications: I have been retained by Mr. Schuman to measure the level of SHS in his unit and to evaluate his acute and chronic risk from SHS exposure. I hold a MSc. in physics from the Polytechnic University of New York, and am a biophysicist and an international secondhand smoke consultant who has published 75 scientific papers on the hazard, exposure, dose, risk, and control of secondhand smoke, and have conducted numerous field studies of SHS. For my work on SHS, I have received several national honors, including the Flight Attendant Medical Research Institute Distinguished Professor Award, the Robert Wood Johnson Foundation Innovator Award, the Surgeon General’s Medallion, and a Lifetime Achievement Award from the American Public Health Association. I hold an appointment as a Visiting Assistant Clinical Professor at the Tufts University School of Medicine. I am a former senior policy analyst and staff scientist with the U.S. Environmental Protection Agency in Washington, DC. I served as a consultant to the Occupational Safety and Health Administration, U.S. Department of Labor, on its proposed rule to regulate secondhand smoke and indoor air quality. I served as a research physicist at the Naval Research Laboratory in the Ocean Sciences and Electronics Divisions, and as a health physicist at Delafield Hospital on the health physics staff of the City of New York, and in the Thyromedical Clinic at Grasslands Hospital, Westchester County, NY.



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A CV, a list of my publications and presentations, and numerous downloadable reports on secondhand smoke are available on my website: <www.repace.com> METHODS: Advances in air sampling have resulted in the development of a variety of inexpensive and accurate active and passive monitors for measuring nicotine in indoor environments and for personal monitoring. I obtained such a passive monitor from the laboratory of Prof. S. K. Hammond at the School of Public Health, University of California at Berkeley. Dr. Hammond’s monitor collects nicotine by passive diffusion to a filter treated with sodium bisulfate, and the deposit on the filter is analyzed by gas chromatography. The monitor is obtained from the laboratory in a sealed container, and begins measuring nicotine from the time it is removed from the container until the time it is replaced in the sealed container. Figure 2 shows the monitor hanging from a lamp (Hammond and Leaderer, 1987; Leaderer and Hammond, 1991).

Figure 2. The Hammond Passive Nicotine Diffusion Monitor.

MEASUREMENTS: After being contacted by Mr. Schuman, I provided him with a passive nicotine monitor to assess the level of SHS infiltration into his unit. The passive nicotine monitor was obtained from the laboratory of Professor S. Katherine Hammond of the University of California, Berkeley. Figure 2 shows a close-up of the passive nicotine monitor. I instructed Mr. Schuman to deploy the monitor as follows:

Enclosed is a passive nicotine monitor. Please remove it from its container, and hang it up behind a counter in the room where you smell the smoke. As soon as you open the container, print the Start time of day and the date on the lid with fine point magic marker, or on the label as this is the start of the nicotine collection time. Leave the monitor in place for approximately 1 month. Do not permit anyone to smoke in your store during this time, as it will compromise the test. After this period, return



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the monitor to its container, record the Stop date and time on the lid or label again, and replace the lid and seal it with scotch tape. Express mail it to Mr. Charles Perrino at the following address, along with a check for $100 made out to “UC Regents”: Mr. Charles Perrino c/o: Hammond Lab UC Berkeley - School of Public Health 353 Mulford Hall - MC #7352 Berkeley, CA 94720-7352 Phone #: 510-643-0296 [email protected]

Mr. Schuman deployed the monitor in the kitchen of his home for the period 3/2/09, 5:45 p.m. (start), to 4/5/09, 2 p.m., a duration of 35.16 days, as follows:

“3/2/09, 5:45 p.m., hung monitor from kitchen cabinet handle nearest location where heaviest smoke seems to enter (near junction box), per instructions from Mr. James Repace, biophysicist, e-mail dated 3/2/09. 3/2/09-4/5/09 no smokers in my apartment. Heavy smoke smell in kitchen near cabinet closest refrigerator, occasionally bathroom and closet under stairs, usually on weekday evenings between 6 p.m. and 11 p.m., later on weekends. When neighbors' service side window open, heavy smoke smell walking up pathway to enter apartment. Seems worse during winter months when heating apartment. 4/5/09, 2 p.m., removed monitor, placed in canister, sealed with scotch tape, put into mailing box, sealed with packaging tape.”



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Figure 3. The nicotine monitor deployed in Mr. Schuman’s kitchen.

Figure 4. An Excel file showing the results of the monitor from the laboratory, 0.05 of nicotine micrograms per cubic meter. Assuming smoking occurred for ~5 hours daily on weekdays and ~6 hours daily on weekends, the monitor was exposed to SHS for 26.16 days on weekdays for 26.16 x 5 = 130.8 hours, and for 9 days on weekends for an additional 9 x 6= 54 hours, for a total estimated exposure time of 184.8 hours out of 35.16 days at 24 hours/day = 843.84



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hours. Adjusting for exposure duration, the monitor was exposed to SHS for an estimated 184.8/843.84 = 21.9% of the time. Thus the adjusted airborne nicotine concentration is 0.05 micrograms per cubic meter (µg/m3)/0.219 = 0.23 µg/m3. New information concerning the high absorption of nicotine vapor relative to fine particle concentrations, as nicotine passes through walls is used to update the exposure and risk assessment relative to my 2009 report on this matter. In the same room where smoking occurs, the ratio of SHS RSP to nicotine is well-known to be 10:1 (Daisey, 1999; Leaderer and Hammond, 1991; Repace and Lowrey, 1993).

However, as a study from the California Department of Health shows, the ratio of SHS-RSP to nicotine in the smoking room is ~9:1, but after SHS passes through walls of the smoking room into adjacent nonsmoking areas, the nicotine is absorbed at a rate which changes the SHS-RSP/nicotine ratio to ~100:1 (Wagner et al., 2004). In a much larger study of 6 buildings in Minnesota, Bohac and Hewett (2004) of The Center for Energy and Environment (CEE) have conducted measurements of respirable particles (RSP) and nicotine infiltration from smokers’ apartments into nonsmokers’ apartments in several buildings in Minneapolis, MN. In 12 one-week measurements of nicotine in nonsmokers’ and smokers’ apartments in 3 apartment building studied in Minneapolis, ranging from 8 units to 12 units to 138 units to a 4-story building, CEE measured SHS infiltration using nicotine and respirable particle (RSP) particle monitors. The 8, 12, and 138 unit building were garden-apartment type complexes. CEE estimates that no more than 75% of RSP from smoking is filtered out by the intervening walls and penetrates into adjacent nonsmoking units. They estimate that about 1% of nicotine penetrates into nonsmokers’ units, as nicotine is a tar-like semi-volatile organic compound (SVOC). If the penetration of SHS-RSP through the walls is 25%, and the penetration of nicotine through walls is 1%, then this ratio, which starts at 10:1 in the smokers apartment, becomes an estimated [(10/1)(25%)/(1%)] = 250:1 in the nonsmoker’s apartment. The range of SHS-nicotine intrusion into nonsmokers’ apartments in buildings ranging from an 8-plex to a 12-plex to a 138 unit to a 4-story building in Minnesota as reported by CEE (2004) is 0.01 µg/m3 to 0.32 µg/m3. The range of PM2.5 in smokers’ units was 8 to 250 µg/m3, and in nonsmokers’ units ranged from 1.25 to 32 µg/m3.

The nicotine value can therefore be used conservatively to estimate the 5-hour

average exposure to fine particles from SHS in Mr. Schuman’s unit using the equation SHS-RSP = 100 x SHS-nicotine = (100)(0.23 µg/m3) = 23 µg/m3. This transformation is for the purposes of odor and irritation assessment. Scaling it to an 8 hour average for the purposes of chronic disease risk assessment, the average reduces to (5/8)(23 µg/m3) = 14.4 µg/m3. Risk Assessment:

Concepts of Regulatory Risk. Involuntarily imposed population risks from SHS can be compared to societal standards for permissible human exposures to environmental



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carcinogens such as industrial chemical emissions and radionuclides in air and drinking water, solvent residues in beverages, and carcinogenic molds and pesticide residues in food. Several U.S. federal regulatory agencies promulgate regulations and standards to protect the public from exposure to environmental carcinogens. It is of interest to inquire as to what levels of population cancer risk typically trigger regulation, what levels are beneath regulatory concern, and how consistently they are applied among various federal agencies. Travis et al.(1990) reviewed the use of cancer risk estimates in prevailing U.S. federal standards and in withdrawn regulatory initiatives, to determine the relationship between risk level and regulatory action in 132 U.S. federal regulatory decisions of record. Travis et al. describe a technical risk assessment term: de minimis risk. De minimis risks are so low that agencies almost never acted to reduce them. For various reasons, chronic mortality risks falling above this level were regulated in some cases but not in others; however, residual risks after control are generally de minimis. Travis et al. found that de minimis risk was 1 x 10-6 (1 death per lifetime per million persons at risk). This concept can be used to evaluate the level of risk from secondhand smoke. CHRONIC RISK. Both the Surgeon General (2006) and the California EPA (2006) state that SHS is a cause of fatal heart disease and lung cancer. This chronic risk may be quantified using exposure response relationships relating SHS nicotine to risk published in the peer-reviewed scientific literature and compared to federal decision rules for regulating hazardous air pollutants as follows: Repace (2009) associated an 8-hour average SHS-RSP level of 75 µg/m3 with a 40-year working lifetime (WLT40) increase in SHS-induced mortality in the United States from lung cancer of 1 death per 1000 person-years (PY) at risk, and 1 death in 100 PY at risk for heart disease, giving a combined total risk of 11 deaths per 1000 PY of exposure. Applying this dose-response relationship to Mr. Schuman’s exposure yields an estimated: (14.4 µg/m3)(11 deaths/1000 PY-75 µg/m3) = 211 deaths per 100,000 persons at risk per working lifetime. By comparison, the federal de minimis risk level for environmental agents in air or water (below which risks are considered “beneath regulatory concern”) is 1 death per 1,000,000 persons per working lifetime (Repace, Jinot, Bayard, et al., 1998). Thus, to put Mr. Schuman’s chronic risk into perspective, his exposure is equivalent to an excess risk from SHS-exposure in Unit Q of (211 x 10-5 deaths)/(1 death x 10-6) = 2112 times the federal de minimis risk level. Moreover, the federal de manifestis (obvious) risk level, above which risks are invariably regulated, is 3 deaths per 10,000 persons at risk per lifetime. Mr. Schuman’s SHS exposure, rounded to one significant figure, is 7 times the level that constitutes a de manifestis risk. This is quite a significant risk. Table ES.2 shows that there are an estimated 50,000 deaths annually from SHS exposure (CalEPA, 2006).



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Table 3 lists the numerous health effects from SHS (CalEPA, 2006), including Mr. Schuman’s chronic respiratory symptoms.

Table 3. Health Effects From SHS (Environmental Tobacco Smoke) Exposure

(CalEPA, 2006).



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ACUTE RISK. In addition to the chronic risks, SHS has a number of acute risks as well: Acute Respiratory Effects: According to the Surgeon General (2006), SHS causes acute respiratory effects:

• SHS contains many chemicals that can quickly irritate and damage the lining of the airways.

• Even brief exposure can trigger respiratory symptoms, including cough, phlegm, wheezing, and breathlessness.

• Brief exposure to SHS can trigger an asthma attack in children with asthma.

• Persons who already have asthma or other respiratory conditions are at especially high risk for being affected by SHS, and should take special precautions to avoid SHS exposure.

Acute Cardiovascular Effects: According to the Surgeon General (2006), SHS causes heart disease:

• Breathing SHS for even a short time can have immediate adverse effects on the cardiovascular system, interfering with the normal functioning of the heart, blood, and vascular systems in ways that increase the risk of heart attack.

• Even a short time in a smoky room can cause blood platelets to become stickier, damage the lining of blood vessels, decrease coronary flow velocity reserves, and reduce heart rate variability.

• Persons who already have heart disease are at especially high risk of suffering adverse affects from breathing SHS, and should take special precautions to avoid even brief exposure.



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Odor and irritation: SHS is highly irritating: nearly three-fourths of nonsmokers are disturbed by smoky air (Weber and Grandjean, 1987). The median threshold for sensory irritation (eye, nasal, and throat), i.e. the level at which half of the exposed population will exhibit acute irritation symptoms of SHS exposure, is 4.4 µg/m3 for SHS-RSP. This means that half of an exposed nonsmoking population of healthy normal persons will be irritated at SHS-RSP levels less than 4.4 µg/m3. Further at this 4.4 µg/m3 level of SHS-RSP, 67% of the nonsmokers judge the air quality to be unacceptable (Junker et al., 2001). The median offensive odor-detection threshold is ~1 µg/m3. This means that half of an exposed nonsmoking population will be find SHS-RSP to be offensive at levels less than 1 µg/m3. Mr. Schuman’s estimated SHS-RSP exposure is 23 µg/m3, which is in the range of irritation and more than 5 times the median level for offensive SHS odor as well. Ventilation and Infiltration in Multi-family Dwellings: How does SHS migrate from one row-house to another? Tobacco smoke generated in one part of a structure may migrate to another part of the structure by airflows through the structure or through the windows from tobacco smoke generated outside the structure. Apartments are ventilated partly by uncontrolled infiltration (unintended airflows through the building envelope into the dwelling) and natural ventilation (operable windows). Intermittently operated bathroom and kitchen exhaust fans cause temporary increases in ventilation and infiltration rates. Leakage in the ductwork of intermittent forced air heating and air conditioning systems and pressurization and depressurization of individual rooms can drive infiltration and exfiltration (unintended airflows through the building envelope out of the dwelling). During the heating season, air flow in heated multilevel buildings may occur from lower levels to upper levels via a chimney effect. Cool outdoor air infiltrates in at the lower levels due to strong indoor-outdoor temperature differences, and flows upward as it warms, exfiltrating from upper levels. In the cooling season, when the building is cooled by air conditioning, the airflow direction can reverse; however, downward airflow will be less pronounced due to lesser indoor-outdoor temperature differences in warm weather than in cold. Mechanical ventilation can reduce or overwhelm the upward buoyancy-driven air flow. In addition, there are horizontal flows between attached structures or apartments, through unintentional openings in walls and floors, and these flows may be driven by mechanical ventilation systems, buoyancy, and wind. The vertical and horizontal airflows between



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apartments or attached structures will transport pollutants as well as air; thus, occupants may be exposed to pollutants such as tobacco smoke from other units. (IOM, 2000). In other words, SHS can migrate through apparently solid walls through a variety of openings and crevices, driven by diffusion, fans, wind pressure, and temperature differences. • Public Policies on SHS in Multifamily Dwellings: The 2006 Surgeon General’s Report on Secondhand Smoke states that as evidence regarding the health effects of secondhand smoke has accumulated, there has been growing concern about the impact of secondhand smoke exposure in multi-unit housing, including commercially owned apartments and condominiums, as well as public housing. This concern is based upon the fact that secondhand smoke from one unit in a multi-unit housing complex can seep into an adjoining unit through shared air spaces or shared ventilation systems. • • The main approach for addressing this issue has been education of landlords and property managers with the goal of having them implement voluntary no-smoking policies. In some cases, tenants have also taken legal action to achieve this outcome (Sweda 2004). These policies may apply to common spaces within the housing complex (such as lobbies, corridors, stairwells, elevators, laundry rooms, community rooms, and recreational areas), housing units rented to new tenants, or housing units rented to both new and existing tenants.

According to the Surgeon General (2006), until recently, landlords and property managers have been reluctant to restrict smoking in multi-unit housing because of concerns about the legality of doing so and because of the perception that regulating tenants’ smoking may constitute an intrusion on their privacy. However, tenants who live in multi-unit housing have certain legal obligations and rights. These obligations and rights in many cases make it possible for landlords and property managers to restrict or eliminate smoking in apartments and for nonsmoking tenants to obtain relief from secondhand smoke seepage from adjoining units.

In addition to protecting tenants from secondhand smoke exposure and

avoiding legal action by nonsmokers who experience secondhand smoke seepage from neighboring units, landlords and property managers are in some cases motivated by additional factors, such as reductions in maintenance, cleaning costs, burns, fire danger, and property insurance



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premiums. Several organizations are providing information and technical assistance to landlords to encourage them to implement smoking restrictions in apartments and condominiums and are working with landlords to publicize smoke-free rentals through Web site listings (e.g., <http://www.smokefreeapartments.org>; <http://www.tcsg.org/sfelp/apartment.htm>; <http://www.mismokefreeapartment.org>).

A recent review of legal rulings in this area found that landlords, condominium associations, and other multi-unit property holders may prohibit smoking for new, and in many cases existing, occupants (Schoen-marklin 2004). Courts do not recognize a legal right to smoke in such dwellings, whether the dwelling is publicly or privately owned. In addition, residents of multi-unit dwellings have access to common law remedies for stopping secondhand smoke infiltration, including local safety and health codes. If a resident of a multi-unit dwelling can demonstrate that secondhand smoke exposure limits a major life activity, the federal Fair Housing Act of 1992 can be used to end the secondhand smoke incursion. Landlords and building owners can prohibit smoking in apartments and condominiums, protecting them from lawsuits related to secondhand smoke infiltration (Schoenmarklin 2004).

Similarly, a review of potential legal remedies for tenants affected by secondhand smoke seepage concluded that state regulations, such as sanitary codes, provide general language for protecting the health of residents in multi-unit buildings (Kline 2000). Tenants can also use traditional claims of nuisance, warranties of habitability, and the right of quiet enjoyment.

The general health protection language of state regulations, along with evidence of the harmful effects of exposure to secondhand smoke, gives state agencies authority to regulate secondhand smoke infiltration between apartments in multi-unit dwellings. In states where regulations do not exist, other legal remedies may be available, many premised on the existence of a harm to the nonsmoking resident (Kline 2000). In addition, residents who can prove that they have a disability, including multiple chemical sensitivity disorder or environmental illness, which is affected by exposure to secondhand smoke, have recourse under the Fair Housing Act of 1992 (Schoenmarklin 2004). In 2005, a housing court jury in Boston, Massachusetts, ruled that a couple could be evicted from a rented apartment based on other tenants’ complaints that the secondhand smoke they generated was seeping into adjoining apartments (Ranalli and



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Saltzman 2005). The jury found that the couple’s heavy smoking violated a clause that prohibited “any nuisance; any offensive noise, odor or fumes; or any hazard to health.” They made this ruling even though the landlord had not included a specific nonsmoking clause in the lease. Some government bodies have taken steps to regulate smoking in private multi-unit housing settings. For example, several cities in Alameda County, California, have local ordinances in place requiring that common areas in multi-unit housing be smoke-free (Chen 2005). Under a local ordinance declaring SHS to be a “nuisance,” a couple in Dublin, CA obtained a temporary restraining order against a chain-smoking neighbor to deal with secondhand smoke infiltration. With the order, signed in March by Alameda County Superior Court Judge Charles Smiley, the couple got permission to call the police to enforce the order or to arrest the neighbor. The couple said their neighbor would chain smoke outside and the smoke, which the couple was allergic to, would travel into their unit. It would also travel into their apartment when he smoked with his bathroom vent on. The court order prohibited a neighbor from smoking within 25 feet of their residence, or in any room in the apartment complex that shared an air duct or ventilation system with their unit. A Utah law stipulates that residential unit rental and purchase agreements may prohibit generation of tobacco smoke (Utah Con-dominium Ownership Act 2005). Thus, SHS infiltration is beginning to be recognized as both a health and welfare threat by courts and legislatures around the country.

Conclusions:

1. Secondhand smoke (SHS) was measured via a passive nicotine monitor in Mr. Schuman’s townhouse for approximately one month. Nicotine was detected, indicating the presence of SHS at significant levels.

2. The average nicotine level was evaluated using a published dose/response relationship for chronic mortality from SHS-induced lung cancer and heart disease.

3. Mr. Schuman’s average daily SHS-nicotine exposure produces an estimated excess chronic mortality risk that exceeds by more than 2000 times the de minimis risk level used by U.S. Environmental Protection Agency for hazardous air pollutants, and is seven times the level that constitutes a de manifestis or obvious risk by federal regulatory standards.

4. Mr. Schuman’s short term irritation from SHS is estimated to be more than 5 times the median threshold for SHS irritation in healthy adults.

5. The U.S. Surgeon General has stated “there is no safe level of SHS exposure.” 6. The U.S. Centers for Disease Control has stated that “Even brief SHS exposure

increases risk of heart attack or cancer.” 7. The California Environmental Protection Agency has stated that SHS can produce

chronic respiratory symptoms in adults. 8. I conclude, to within a reasonable degree of scientific certainty, that Mr. Schuman

is exposed to unhealthy levels of secondhand smoke from a cigarette smoker in his neighboring townhouse, that poses both acute and chronic hazards, and that is irritating and malodorous as well.



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9. Attempts to remedy the situation by sealing openings between the premises have been unsuccessful.

10. This unhealthy SHS infiltration condition can only be remedied by elimination of smoking in the interior of the neighboring townhouse.

Signed

James Repace, MSc. 8/24/2010



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• References Bohac David L., Martha J. Hewett, S Katherine Hammond, David T. Grimsrud. Reduction of Environmental Tobacco Smoke Transfer in Minnesota Multifamily Buildings Using Air Sealing and Ventilation Treatments. Center for Energy and Environment 212 3rd Avenue North, Suite 560, Minneapolis, MN 55401. CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY. (2006). Health Effects of Exposure to Environmental Tobacco Smoke, Final Report. Office of Environmental Health Hazard Assessment. Chen S. State of Tobacco Control in Alameda County 2004. Emeryville (CA): American Lung Association of the East Bay, 2005. Hammond SK, Leaderer BP. A diffusion monitor to measure exposure to passive smoking. Environ Sci Technol 1987;21:494–7. IOM. Impact of Ventilation and Air Cleaning on Asthma, Chapter 10, R. Diamond. Clearing the Air – Asthma and Indoor Air Exposures. Institute of Medicine, National Academy of Sciences. National Academy Press, Washington, DC, 2000. Junker MH, Danuser B, Monn C, Koller T. Acute sensory responses of nonsmokers at very low environmental tobacco smoke concentrations in controlled laboratory settings. Environmental Health Perspectives. 2001;109:1045-1052. Kazmi S. Dublin couple may have set anti-smoking precedent, Valley Times, Article Last Updated: 10/27/2008 07:11:26 AM PDT. http://www.insidebayarea.com/ trivalleyherald/localnews/ci_10823336 downloaded 10/30/2008. Kline RL. Smoke knows no boundaries: legal strategies for environmental tobacco smoke incursions into the home within multi-unit residential dwellings. Tobacco Control 2000;9(2):201–5. Leaderer BP, Hammond SK. Evaluation of vapor-phase nicotine and respirable suspended particle mass as markers for Environmental Tobacco Smoke. Environ Sci Technol 1991;25:770–7. Ranalli R, Saltzman J. Jury finds heavy smoking to be grounds for eviction: verdict is said to be one of first in nation. Boston Globe June 16, 2005. Repace JL. Secondhand Smoke in Pennsylvania Casinos: A Study of Nonsmokers’ Exposure, Dose, and Risk. American Journal of Public Health 99: 1478–1485 (2009). Repace JL, Jinot J, Bayard S, Emmons K, and Hammond SK. Air nicotine and saliva cotinine as indicators of passive smoking exposure and risk. Risk Analysis 18: 71-83 (1998).



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Schoenmarklin S. Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings. A Law Synopsis by the Tobacco Control Legal Consortium, April 2004. <http://www.tcsg.org/sfelp/condos.htm>. Surgeon General. Centers for Disease Control and Prevention (2006), Coordinating Center for Health Promotion, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, The health consequences of involuntary exposure to tobacco smoke: A report of the Surgeon General, Atlanta, GA, 2006. Sweda EL Jr. Lawsuits and secondhand smoke. Tobacco Control 2004;13(Suppl I):i61–i66. Wagner J; D. P. Sullivan; D. Faulkner; W. J. Fisk; L. E. Alevantis; R. L. Dod; L. A. Gundel; J. M. Waldman. Environmental Tobacco Smoke Leakage from Smoking Rooms. J. Occ. and Environ. Hygiene; 1(2): 110-118 (2004).

•



Repace Associates, Inc. Outdoor Smoke in Greenbelt MD

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BACKGROUND: Mr. David Schuman resides at 11 Q Ridge Road, Greenbelt, MD 20770, in a cooperative association, Greenbelt Homes, Inc. (GHI). His unit is one of eight individual units in a connected row, brick construction with slate roof, built in the late 1930s. His unit adjoins the unit of his neighbors, the Mr. and Mrs. Popovic, who own Unit R. These neighbors are smokers. Mr. Schuman does not smoke. Nor does his neighbor on the other side of Mr. Schuman’s unit. Mr. Schuman relates that for many years, his neighbors have smoked inside and outside their unit. Conditions have been very bad on occasion but inconsistently so. In recent months, particularly over the winter, conditions became intolerable for him on a more regular basis. He complains of a heavy smoke smell on most nights. On occasion, he was forced to open his windows during winter to dissipate accumulating secondhand smoke (SHS) infiltrating from Unit R. He became ill with bronchitis-like symptoms for several months and visited the doctor twice. Subsequently, Mr. Schuman filed suit against Mr. and Mrs. Popovic, and their cooperative association, Greenbelt Homes, Inc. In a preliminary court hearing, Mr. Popovic announced that he and his wife agreed not to smoke inside their residence, but insisted on the right to continue to smoke outside their residence on their own property. However, Mr. Schuman and the Popovic’s neighbor in Unit S both stated that outdoor smoking by the Popovics penetrated into their homes when windows were opened. Accordingly, in order to estimate the level of smoke that might penetrate the open windows of Mr. Schuman, I have conducted the following analysis. My scientific credentials to perform such an analysis are appended in About The Author. Determinants and Measurements of Outdoor Secondhand Smoke Concentrations 1. The concentration of tobacco smoke pollution in buildings and in vehicles is proportional to the density of smokers, and inverse to the ventilation rate.

Tobacco smoke

pollution outdoors (outdoor secondhand smoke), is far more complicated, being determined by a combination of the density and distribution of smokers, the wind velocity (direction and speed), and the stability of the atmosphere.

High outdoor SHS

exposures are produced by high smoker density, low wind velocity, close proximity, and stable atmospheric conditions. SHS concentrations persist for hours after smoking ceases indoors, while SHS concentrations dissipate rapidly after smoking ceases outdoors.

However, during smoking, SHS levels outdoors may be as high as SHS indoors, especially in close proximity to smokers. 2. Repace (2005; 2008) studied SHS outdoors on the campus of the University of Maryland, Baltimore County (UMBC) and also on a cruise ship in the Caribbean. Figure 1 shows the experimental array for the detection of particulate matter 2.5 microns in diameter or less (PM2.5) and carcinogenic particulate polycyclic aromatic hydrocarbon (PPAH) from 8 smoldered cigarettes arrayed in a ring around the monitor such that the monitor detected the smoke of a single cigarette no matter what the wind direction.



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Figure 1. Smoldering cigarettes arrayed on 8 chairs in a ring about the air quality monitors in luggage bags at the center, such that no matter which way the wind blows in any of 8 compass directions, the smoke from one cigarette will be detected by the monitors (Repace, 2005). Atmospheric conditions were turbulent, with strong sun and high wind speeds, ranging from 5 m/s to 10 m/s (11 MPH to 23 MPH).

3. Figure 2 shows a graph of the outdoor SHS concentrations (labeled Fig. 6 in Repace, 2005), indicating that the SHS concentration decreases roughly inversely with distance. On this day there was strong sun, high wind speeds 5 m/s (11 mph) with frequent gusts to 10 m/s (23 mph), temperature 62oF, 30% RH (Repace, 2005). In response to this report, the UMBC Faculty Senate restricted outdoor smoking: "Smoking is prohibited within 20 feet of all building openings including walkways, doorways, air or ventilation intake systems, entryways, and windows. Smoking is also prohibited on UMBC’s mainstreet area (from the entrance to the Kuhn Library to the street adjacent to the Administration and Recreational Activity Center), and the patio area outside the Commons."



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Figure 2. Plot of data from experiment shown in Figure 1 (Repace, 2005) showing that cigarette smoke respirable particle (RSP) concentration varies approximately inversely with the distance from the cigarette. These levels are background-subtracted, showing that PM2.5 and PPAH from SHS were detected at distances 7 meters or more from a single cigarette even under turbulent conditions. 4. Klepeis et al. (2007) made real-time measurements of outdoor SHS under controlled and field conditions, where they visited parks, sidewalk cafes, and restaurant and pub patios with smokers. They found that during periods of active smoking, SHS levels near smokers rivaled indoor concentrations of SHS indoors. They concluded that SHS could present a nuisance or hazard under certain conditions of wind and smoker proximity. Their controlled experiments used the same concentric ring protocol as shown in Figure 1. Klepeis et al. (2007) reported that SHS PM2.5 levels ranged from 6 to 67 µg/m3 with an overall average of 30 µg/m3. Where wind effects were present, levels ranging from 106 to 133 µg/m3 were observed for all distances, close to levels observed indoors in a small bedroom during smoking. During outdoor patio experiments, downwind levels of SHS were detectable at distances 3 to 4 meters from a single cigarette, similar to the results shown in Figure 2 by Repace (2005). Klepeis et al. (2007) observe that their results agree with the CARB (2005) study, i.e., that Californians who spend time close to outdoor smokers could potentially be exposed to SHS levels similar to those associated with indoor SHS.

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5. Adverse reaction thresholds. Junker et al. (2001) investigated the effect of sidestream SHS on 24 female nonsmokers aged 18 - 35 years. Subjects were healthy, non-allergic persons. Observed median threshold concentrations causing eye, nasal, and throat irritation corresponded to an estimated SHS-PM2.25 concentration of 4.4 µg/m3. The median threshold signifies that half of the subjects found levels of cigarette smoke irritating below 4.4 µg/m3, and the remaining half found it irritating above that level. At this concentration, the percentage of occupants judging the quality of air to be acceptable was only 33%. Odor thresholds of SHS obtained from the olfactory experiments showed that a median odor sensation was perceived at very low concentrations equivalent to an SHS-PM2.25 concentration of approximately 0.6–1.4 µg/m3. The study of Junker et al. (2001) gives guidance on the irritation and odor aversion levels to SHS for healthy nonsmokers, and will be used in this work to assess the nuisance potential for SHS outdoors.

6. Figure 3 shows a satellite view of Unit 11 Ridge Road, Greenbelt, MD in August 2010, made using Google Earth, with Units Q (Schuman) and R (Popovic) indicated. North is at the top of the picture. The 16 points of the compass rose are shown in the insert at the upper right. The long axis of the Unit 11 building is oriented parallel to the North (N) and North-Northeast (NNE) compass sector.

Fig. 3. 11 Ridge Road, Greenbelt MD, View from Google Earth, August 2010. The Service side of Unit 11 is on the left side where cars are parked; the Garden side is on the opposite side where the curving sidewalk limits the yards of Unit 11.



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7. The smoke plume from a cigarette smoked either on the Service side or Garden side yards of Unit R will only impact Unit Q when the wind is blowing from the smoker in the yards of Unit R towards the windows and doors of Unit Q. A device known as a wind rose is used to estimate the wind direction, speed, and frequency for Unit Q. A wind rose is a graphic tool used by meteorologists to show how wind speed and direction are typically distributed at a particular location over a long time period. The percentage of calm conditions is represented by the size of the center circle -- the bigger the circle, the higher is the frequency of calm conditions. Each branch of the rose represents wind coming from that direction, with north to the top of the diagram. The branches are divided into segments of different thickness and color, which represent wind speed ranges from that direction. The length of each wind rose segment within a branch is proportional to the frequency of winds blowing within the corresponding range of speeds from that direction showing wind speed ranges in either in m/s or in knots. The compass direction with the longest spoke shows the wind direction with the greatest frequency. Wind roses are typically compiled for airports, in order to site runways and inform pilots of the range of expected seasonal wind conditions. 8. The closest local wind rose for Greenbelt, MD is for Baltimore-Washington International Airport, and is shown in Figure 4 for April 1st thru October 31 for 1987-88 and 1990 to 1992; the 360 degrees of the compass rose are divided into the same 16 sectors as the compass rose in Figure 3, each sector covering a 22.5o arc.

Fig. 4. Baltimore Wind rose http://home.pes.com/windroses/wrgifs/93721.GIF.



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Figure 4 shows that the wind blows from the East-Southeast (ESE) approximately 3% of the time, from the Southeast (SE) about 6% of the time, from the South-Southeast (SSE) about 6% of the time, and from the Southeast (SE) about 6% of the time, and from the South (S) about 6% of the time. Thus, on the Garden Side of Mr. Schuman’s home, from ESE to S, the wind blows about 28% of the time, from April 1st to October 31st, the time when windows are most likely to be open. Winds are calm 1.14% of the time (Pacific Environmental Services, downloaded 19 November 2010). Similarly, on the Service or Parking side, the wind blows from the West (W) 9.5% of the time, from the West Southwest (WSW) 6% of the time, from the SW 7% of the time, from the SSW 7% of the time, and from the South 6% of the time for a total of 36% of the time for the West to South sectors.

9. Wind speeds range from calm to about 16 knots for those sectors. The table below shows the average wind speeds from April through October for 59 years of data through 2009 range from 10.1 miles per hour (MPH) to a low of 7.5 MPH, and average 8.2 MPH. [1 mile per hour = 0.44704 meters per second], thus the wind speed ranges from 3.35 m/s to 4.5 m/s, and averages 3.65 m/s. The default anemometer height is 10 meters (m) (32.8 ft), since these are typically located on top of a building or on a tower. However, we are interested in a smoke plume near the surface at the height of about 1.5 m. Therefore the anemometer wind speed must be adjusted for surface roughness (trees, buildings, bushes, etc.) according to the equation uz = ua (z/za)p, where uz is the wind speed at the surface height z = 1.5 m, za = 10m is the height of the anemometer, and ua = 3.65 m/s is the windspeed at anemometer height, and p is a surface roughness parameter ranging from 0.07 for unstable air to 0.55 for stable air (Turner, 1994). Then for unstable air, the adjusted windspeed at 1.5 m is uz (unstable) = 3.6 m/s(1.5/10)0.07 = 3.19 m/s, and for stable air, air, it is uz (stable) = 3.65 m/s(1.5/10)0.55 = 1.3 m/s (2.9 MPH). I shall choose a very conservative value of 3 m/s (6.7 MPH).

Table 1. Average Wind speeds Baltimore, 1950-2009

10. Figures 5a and 5b show the superposition of Figures 3 and 4. Secondhand smoke emanating from a smoker or smokers smoking in the back yard of 11 R would blow toward the garden side door and window of 11 Q whenever the wind blows from the East Southeast to the South Southwest sectors, i.e., within the zone bounded by the two white arrows of 5a: ESE, 3%; SE, 6%; SSE, 6%; S 6%, and SSW 7%, total 28%. Similarly, the winds would blow smoke from the Service side yard of 11 R toward 11 Q whenever the wind blows from the West to the South-Southwest sectors between the two white arrows of 5b: W, 9.5%, SW, 7%; SSW, 7%; WSW, 6%, and S 6%, total 35.5%. However, when the wind blows from the West and the East Southeast, it will blow the smoke plume against the wall of the house and split it, with only half going toward Unit Q.



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Fig. 5a. Overlap of the Baltimore Wind Rose on the 11 Ridge Road complex, Garden side. Winds blow from Unit R toward Unit Q an average of 28% of the time.

Fig. 5b. Overlap of the Baltimore Wind Rose on the 11 Ridge Road complex, Service side. Winds blow from Unit R toward Unit Q an average of 35.5% of the time.



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Figure 6. Outside Dimensions of Unit Q, a 3-bedroom unit. The outside dimensions of Unit R, also a 3 bedroom unit, are assumed to be the same: Width = 29’; Length = 42’ on the Garden Side, and Width = 29’; Length = 37’ on the Service or Parking Side (D. Schuman, personal communication).



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11. Figure 6 shows a diagram of the outside dimensions of Unit Q provided by Mr. Schuman, and the estimated outside dimensions of the Unit R Garden and Service (Parking) Side yards. According to the diagram, the width of Mr. Popovic’s yard in Unit R is approximately 27 feet to the middle of the sidewalk between the units. Mr. Schuman’s yard is about 29 feet wide. The height of the nearest Unit Q window is 4 feet off the ground, and the second story window of Unit Q is 8.5 feet from the ground. The perpendicular depth of the yards from the garden side doors to the common area sidewalk on the Garden Side is about 42’ and the width of the yards is about 29’. Thus, on the service side, the furthest distance in the yard of Unit R a smoker could stand from the nearest corner of unit Q is the diagonal, D = (372 + 292)(1/2) = 47’ (14 meters), and on the garden side, D = D = (422 + 292)(1/2) = 51’ (15.5 meters). Similarly, the nearest distance to Mr. Schuman’s property line from the common sidewalk is 0 meters. For someone smoking on the back porch of Unit R, the nearest distance to Unit Q’s ground floor rear window is about 3 meters, as shown in Figure 7. Therefore the range of interest is from 0 to 15.5 meters.

Figure 7a. Photo of Garden Side Yard between Units R and Q. The distance between the rear porch of Unit R and the nearest window of Unit Q is about 3 meters or 9.84 feet.



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Figure 7b. Based on the presence of chairs under the porch roof of Unit R, it appears that smoking is most likely to occur 3 to 4 meters from the Garden-side window of Unit Q. Modeling of Outdoor Smoke Using the Ground-level Release Model from Turner's Workbook of Atmospheric Diffusion Estimates (Turner, 1994).

12. The concentration of outdoor secondhand smoke from the yards of Unit R impacting on the windows and doors of Unit Q is estimated using a Dispersion Equation. The form of this equation for a ground level release of pollutant is given by Equation (1), and is used to describe the plume concentration downwind from the source, as shown in Figure 8.

Dispersion Equation

X(x,y,z,H) = Q/[πσy(x) σz(x) u] Equation (1),

where X(x,y,z,H) is the pollution concentration in units of micrograms per cubic meter (µg/m3), u is the wind speed in m/s, for an outdoor ground level pollutant release along the center of the plume line, y = z = H = 0, as shown in Figure 9. Q is the source emission strength in units of micrograms per second. The concentration in the downwind direction, x, is X(x,0,0,0,) which is a function of the dispersion coefficients, σy(x) and σ z(x) . Values for these coefficients are obtained from Table 3-1 (Table 4 below) Turner's Workbook of Atmospheric Diffusion Estimates, 2nd Edition, 1994. Wind speed u is typically estimated from a wind rose. Equation 1 shows that the downwind concentration is directly proportional to the source strength Q and inversely proportional to the wind speed u. The atmospheric dispersion parameters σy(x) and σz(x) determine the spread (and therefore the dilution) of the plume concentration respectively in the



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horizontal and vertical directions perpendicular to the axis of the plume, and increase with distance x downwind from the source, as shown in Figure 8. 13. Equation 1, the equation for a ground level release and a ground level receptor, derived from the Gaussian Plume Model (Eq. 3.1 in Turner's Workbook). For all cases, I assume a wind speed u = 3 m/s. Turner indicates the model results are accurate to a factor of 2, since plume height is ground level and wind speed is assumed. The variable x,y,z are the standard Cartesian coordinates, where x is the wind direction, z is height, and y is horizontal spread, as shown in Turner's Fig 3-1, reproduced as Figure 8 here. In this calculation, I assume that the smokers' cigarette plumes and the target windows and doors of Unit Q are at the same height, and downwind on the plume axis. Figure 9 shows that the closer one gets to the source the smaller the dispersion, and the higher the exposure concentration, as represented by ellipses for which the dispersion coefficients are the length of the semi-major and semi-minor axes, as shown. The product πσy(x)σ z(x) represents the area of the ellipse giving the cross-sectional area of the plume as a function of distance x downwind. The closer to the source, i.e. the smoker, the smaller the cigarette plume cross-sectional area, and hence the higher the concentration of SHS in the plume. Thus, exposure to the cigarette plume for a downwind receptor depends on wind direction and speed, and the amount of turbulence-determining sunlight, which affects the stability or mixing properties of the air by inducing thermal gradients. For the experiments of Figure 2, for example, the strong sun and high winds dictate “B” stability, with occasional excursions into “C” stability.

Figure 8. Schematic of the Gaussian Plume Model; dispersion coefficients σy(x) and σz(x) are smaller closer to the source, yielding higher plume concentrations at close-in locations enveloped in the plume (Turner, 1994).



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Table 2 shows the recommended stability categories for various wind speeds and sunlight for use in the Gaussian Plume Model. Table 2. Day and Night Wind Speed and Atmospheric Stability Categories for determining Pasquill-Gifford Dispersion Coefficients.

14. To calculate the concentration downwind from a single smoker in the Service side or Garden side yards of Unit R, I use the following parameter values for Equation 1: Q: A typical cigarette emits 14,000 micrograms of PM2.5 per 10 minutes, or Q = 23 micrograms per second (µg/s) (Repace, 2007). u: the average BWI wind speed ranges from 3 m/s to 4 m/s from Table 3. Atmospheric Stability Category: During daylight hours, B or C Stability for wind speeds ranging from u = 3 m/s to 5 m/s (Table 4). Numerical examples of the variation of concentration with stability are given in Case 1 and Case 2 below. The following dispersion coefficients are taken from Turner's Workbook, Table 2.5 (part 1): Daytime, B or C Stability: σy(x): for B stability at x = 0.01 km = 10 meters (32.8 feet) = 2.34 m σ z(x): for B stability at 10 meters (32.8 feet) = 1.24 m σy(x): for C stability at 10 meters (32.8 feet) = 1.47 m σ z(x): for C stability at 10 meters (32.8 feet) = 0.91 m Thus, in the daytime, B stability, σy(0.01 km) = 2.34 m; σz(0.01 km) = 1.24 m is the case with the greatest dispersion (best case). Case 1, Daytime, B stability: σy(0.01 km) = 2.34 m; σz(0.01 km) = 1.24 m. Substituting these values into equation 1 yields: X(x,y,z,H)C = Q/(πσy σ zu) = (23 µg/s)/[(3.14)(2.34m)(1.24m)(3m/s)] = 0.84 µg/m3 per cigarette at a distance of 33 feet.



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As the atmospheric stability increases, the concentration downwind increases: Case 2, Daytime, C stability: σy(0.01 km) = 1.47 m; σz(0.1 km) = 0.91 m. Substituting these values into equation 1 yields: X(x,y,z,H)D = Q/(πσy σ zu) = 23 µg/s)/[(3.14)(1.47m)(0.91m)( 3 m/s)]= 1.83 µg/m3 per cigarette at a distance of 33 feet (10 m). Note that an increase from B to C stability more than doubles the downwind concentration from 0.84 µg/m3 to 1.83 µg/m3 at 10 m distance. Case 3, Nighttime, D and E stability: The following dispersion coefficients are taken from Turner's Workbook, Table 2.5 (part 1): Nighttime: σy(x): for D stability at x = 0.01 km = 10 meters (32.8 feet) = 0.96 m σ z(x): for D stability at 10 meters (32.8 feet) = 0.63 m σy(x): for E stability at 10 meters (32.8 feet) = 0.72 m σ z(x): for E stability at 10 meters (32.8 feet) = 0.51 m Thus, at night, E stability σy(0.01 km) = 0.72 m; σz(0.01 km) = 0.51 m is the case with the least dispersion (worst case). X(x,y,z,H)E = Q/(πσy σ zu) = (23 µg/s)/[(3.14)(0.72 m)(0.51 m)(3m/s)] = 6.65 µg/m3 per cigarette at a distance of 10 m or 32.8 feet. 15. In the case of David Schuman’s exposure to SHS at Unit 11 Q, as a practical matter, we are interested in distances from about 2 meters (~6-1/2 feet) to 15 meters (49.2 feet) from a smoker in either the Service-side or Garden-side yards. However, Turner's Workbook does not give values for the dispersion coefficients for distances less than 10 meters, so they must be extrapolated using curve-fitting. Estimation of Smoke Concentration on the plume axis for distances less than 10 meters from a single smoker smoking a cigarette for B (best case) and E Stability (worst case). 16. In the case of Unit 11 Q’s exposure, it is necessary to derive the dispersion coefficients for B (daytime best case) and E stability (nighttime worst case) using the same curve fit technique, yielding extrapolation equations from their values from 10 to 50 meters. Table 3 gives the values for x, the product σyσz, for B and E stability, and the equations for X(x,y,z,H) (chi) for x = 10 to 50 meters, from Turner, Table 2.5, using Q = 23 µg/s, and u = 3 m/s. Table 3. Estimated secondhand smoke concentrations from 10 to 50 meters.

x, meters σyσz, B Stability σyσz, E Stability XB=Q/(πσy σ zu) XE=Q/(πσy σ zu) 10 2.9 0.37 0.84138 6.5946 20 10.5 1.26 0.23238 1.9365 30 22.1 2.58 0.11041 0.94574 40 37.7 4.29 0.064721 0.56876 50 56.9 6.37 0.042882 0.38305



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Equations 2 and 3 below give those equations, curve-fitted from the data in Table 3. for B and E Stability:

XB= 59.32 * x-1.849 Equation 2. XE= 386.1 * x-1.768 Equation 3.

Table 4 gives the values for Equations 2 and 3 for 1 to 10 meters.

Table 4. Estimated secondhand smoke concentrations from 1 to 15 meters. x, meters

XB=Q/(πσy σ zu) XE=Q/(πσy σ zu)

1 59.32 386.61 3 7.7804 55.427 5 3.0256 22.464 7 1.6241 12.392 10 0.83985 6.5959 15 0.39683 3.2207

Figure 9 shows a plot of the data in Table 4, derived from Equations 2 and 3.

FIGURE 9. Estimated exposure to fine particle air pollution (PM2.5) from secondhand smoke as a function of downwind distance for Unit Q from 1 cigarette smoker for B stability to 1 smoker for E atmospheric stability at a mean wind speed of 3 m/s using Method 2. The nearest window of Unit Q, would encounter median irritating levels of SHS (4.4 µg/m3 -- double arrow) at distances ranging from 4 meters (13.4 feet) downwind from 1 smoker to 41.3 feet, downwind of 1 cigarette smoker at night.



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17. Figure 9 shows the expected SHS PM2.5 concentration as a function of

distance from 1 to 10 meters for a single smoker, for daytime atmospheric stability B and nighttime atmospheric stability E, for a wind speed of u = 3 m/s. The Junker et al. (2001) threshold irritation level of 4.4 µg/m3 is exceeded at distances closer than 13.4 feet for B stability during the daytime (best case) and at distances closer than 41.3 feet during the evening (worst case). If there are two smokers, the concentration at 13.4 feet becomes 8.8 µg/m3, and the 4.4 µg/m3 crossover point shifts to the right as the entire line shifts vertically. This may be read directly off the graph with a ruler, by doubling the end-point values in Table 4 for B stability from 59.32 to 118.6 at x = 1 m on the left axis of Figure 9, and from 0.39683 to 0.794 at x = 15 m on the right axis, and read off the crossover point at slightly less than 6 meters, or roughly 19 feet. Thus for 2 smokers, the irritation median shifts from about 13 feet to about 19 feet.

Comparison with the Outdoor SHS findings of Klepeis et al (2007; 2009): 18. Klepeis et al. (2007) measured outdoor PM2.5 from SHS for Sidewalk Cafés

and in a backyard patio in California, shown in Figure 10 for distances ranging from 0.5 to 4 m, finding overall average outdoor SHS concentrations ranging from 6 to 67 µg/m3

and averaging 33 µg/m3. Figure 10 shows the outdoor tobacco smoke (OTS) PM2.5 values Klepeis et al. measured as a function of distance from a single smoker in controlled experiments where distances from a smoker were measured accurately.

Klepeis et al. (2009) in a second study, investigated concentrations of air

pollutants at ground-level outdoor environments within a few meters of point sources, in order to better understand outdoor exposure to tobacco smoke from cigarettes or cigars, and other types of outdoor point sources. Using carbon monoxide (CO) as a tracer gas, they observed that average concentrations were approximately inversely proportional to distance, and average wind speed. Average CO levels were approximately proportional to source strength. They develop a regression model from their data that predicts downwind SHS PM2.5 concentrations as a function of distance from 0.25 m to 2 m for a cigarette smoker emitting 1.4 mg/min (23 µg/s) of PM2.5.



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FIGURE 10. OTS (outdoor tobacco smoke) data measured by Klepeis et al. (2007) for two situations: a Backyard patio and a Sidewalk Cafe for wind speeds ranging up to 1 m/s and under conditions of strong sun, i.e., corresponding to “A” stability.

Therefore, I plotted the dispersion coefficients from Turner's Workbook for distances 10 meters to 50 meters and fit equations to the data. I used these equations to estimate the product of the y and z dispersion coefficients for distances less than 10 meters. From Turner’s workbook,

σy(x): for A stability at 10 meters (32.8 feet) = 2.34 m σ z(x): for A stability at 10 meters (32.8 feet) = 1.24 m

19. I digitized the Sidewalk Cafe PM2.5 and distance (x) data in Figure 10, as shown in columns C0 and C1 in Table 5. For each digitized distance value x, I calculated a corresponding modeled PM2.5 value, given in column 3, using the dispersion values given in column 2 of Table 3, and Equation 1 for distances less than 10 meters, in C2. Column C2 is derived from the equation σy(x)σz(x) = 0.07562 x1.8478 , which gives the product of the dispersion coefficient equations for A stability for distances x = 10 to 50 meters. These interpolated values may be compared to the values generated by the Gaussian Plume Model for a ground level release (Equation 1) for A Stability, which I will call the JLR Model for simplicity. The model-calculated PM2.5 values as a function of distance with real-world data measured by Column C3 gives the modeled value (JLR



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Model) for Q =23.3 µg/s in the numerator of Equation 1 and π σy(x)σz(x)u in the denominator, where u =1 m/s. To estimate error rate, I compare the prediction of the Gaussian model for a ground level release to data collected by Klepeis et al. (2007) for California sidewalk patios (KOS data). Figure 11 shows, for 3 to 13 feet (1 to 4 m) agreement is excellent. A comparison of the concentration calculated from the Gaussian Plume model (col. c3) with the data measured by Klepeis et al. (2007) (col. C1) for distances from 0.82 m to 3.67 m (col. C0), yields close agreement: JLR model = 4.6 + 0.99 KOS data (c1), R2= 0.94. Table 5. Estimated PM2.5 vs. Distance x, A Stability, 1 m/s wind speed

20. The digitized data points () measured by Klepeis et al. (2007) from Figure 11 (digitized as columns C0 and C1, Table 5) are superimposed on the plot of the modeled values (columns C0 and C3, Table 5), as shown in Figure 11. This also serves as an estimation of the error rate of the Gaussian Plume model. Figure 12 shows that real-world data measured for outdoor smoking can be accurately predicted by the plume dispersion model for a ground level release using extrapolated values of the dispersion coefficients given in Turner's Workbook, Table 2.5.



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Figure 11. Model-calculated SHS PM2.5 concentration versus distance from a smoker for A Stability, wind speed 1 m/s superimposed on measured data () from Klepeis et al. (2007). The model (solid curve) gives an excellent fit to the independently measured data. One meter = 3.28 feet. 21. Klepeis et al. (2009) fit a multiplicative regression model to their empirical data that predicts outdoor concentrations as a function of source emission rate, source–receptor distance, air speed and wind direction. They report that model described the data reasonably well, accounting for 50% of the variability in the data. For any wind speed, the model of Klepeis et al. (2009) predicts along a single direction on the plume axis for a rectangular patio of dimensions 45' x 21' (13.7 x 6.4 m), whose long axis runs in a North-South direction with a house wall along one side and a fence on the other. Table 6 below shows the predictions of their regression model for 2 conditions: downwind of a North wind, and in the "maximum direction," (averaging across the maximum 5-min average concentrations occurring in any given direction at a given height and distance from the source). Their model and the Gaussian plume model give similar results.



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Table 6. Model Comparison: Klepeis et al. vs Gaussian Plume. Normalized CO concentration parameter 2 to 5 feet off the ground as a function of distance for all wind speeds >0.2 m/s in µg/m3/mg/min. To convert to SHS PM2.5 concentration the CO parameter is multiplied by 1.4 mg/min for a standard cigarette SHS PM2.5 emission. Values selected are for a North wind, 15 cm above the plume axis for a single smoker (Table 2 from Klepeis et al. (2009).

Horizontal Distance from

source [m]

PM2.5 concentration in the

maximum direction

PM2.5 concentration South of the source

(North Wind)

*Gaussian Plume Model PM2.5

concentration 1.0 43 25 33 2.0 17 13 9

*The Gaussian plume model, used here yields: y = 32.7 x-1.8478 gives the following predictions for the same distances for A Stability for Q = 23 µg/s; u = 3 m/s. y = 32.7 x-1.8478 for x = 1, X(x=1)A = 33 µgm3; x = 2, X(x=2)A = 9 µgm3. Table 4. Estimated secondhand smoke concentrations X in units of µgm3 at smoker-to target distances ranging from 1 to 15 meters.

x, meters XB=Q/(πσy σ zu)

XE=Q/(πσy σ zu)

1 59.32 386.61 3 7.7804 55.427 5 3.0256 22.464 7 1.6241 12.392 10 0.83985 6.5959 15 0.39683 3.2207

22. The Junker et al. (2001) median irritation level of 4.4 µg/m3 is exceeded at a

distance of 4 m (13.4 feet) downwind distance from cigarette to window in the most favorable dispersion case, ranging up to a distance of 12.6 meters (41.3 feet) at night in the least favorable dispersion case. In the evening a single smoker at a distance of greater than 40 feet would cause irritation. For multiple smokers, the concentrations at a given distance would increase proportionately. These occasions when the wind blows from Unit R to Unit Q would happen 28% of the time on the garden side and 35.5% of the time on the service side. I conclude that smoking outdoors in the yards of Unit R would be capable of causing a nuisance in Unit Q a significant portion of the time.

23. Figure 12 is a copy of a City of Greenbelt Park and Recreation Advisory

Board (PRAB) report dated Sept. 20th 2010, adopting a new secondhand smoking policy. The proposed policy change, unanimously adopted 6-0 by the board, recommended banning smoking within 25 feet of indoor recreation facilities, and within 25 feet of open air outdoor recreational facilities such as ball fields and playgrounds. The advisory board stated that the State of Maryland bans smoking within 25 feet of any public building, and that “accepted research states that you must be 23 feet from a smoker to avoid secondhand smoke.” On November 8th, 2010, The Greenbelt City Council accepted the report, 10-2 (Greenbelt News Review, 2010). Thus, the City has acknowledged that



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secondhand smoke is something to be avoided as a matter of public policy.

Figure 12. City of Greenbelt Park and Recreation Advisory Board (PRAB) report recommending a 25-foot outdoor smoking ban in front of indoor and outdoor recreational facilities to the City Council. Adopted by City of Greenbelt, Nov. 8th, 2010.



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25. Finally, I take note of the 2010 Surgeon General’s Report, issued on Dec. 9th, which concluded in part: “There is no safe level of exposure to tobacco smoke. Any exposure to tobacco smoke – even an occasional cigarette or exposure to secondhand smoke – is harmful.” “Low levels of smoke exposure, including exposures to secondhand tobacco smoke, lead to a rapid and sharp increase in dysfunction and inflammation of the lining of the blood vessels, which are implicated in heart attacks and stroke.” (SG, 2010). 26. In conclusion, outdoor secondhand smoke will pose a nuisance to Mr. Schuman a significant fraction of the time when the doors and windows of Unit Q are open if his neighbor in Unit R smokes in his yard. I reach these conclusions to a reasonable degree of scientific certainty. Signed

James Repace, MSc. Dec. 10th, 2010 References Greenbelt News Review, New City Policy Will Ban Smoking in Park Areas. Thursday, Nov. 25th, 2010, p. 8. Junker MH, Danuser B, Monn C, Koller T. Acute sensory responses of nonsmokers at very low environmental tobacco smoke concentrations in controlled laboratory settings. Environmental Health Perspectives. 2001;109:1045-1052. Klepeis NE, Gabel EB, Ott WR, Switzer P. Outdoor air pollution in close proximity to a continuous point source. Atmospheric Environment 43 (2009) 3155–3167. Klepeis, N.E., Ott,W.R., Switzer, P., 2007. Real-time measurement of outdoor tobacco smoke particles. Journal of the Air and Waste Management Association 57, 522–534. Repace JL. Benefits of smoke-free regulations in outdoor settings: beaches, golf courses, parks, patios, and in motor vehicles. William Mitchell Law Review 34(4):1621-1638 (2008). Repace JL. Invited testimony Re: Proposed Bills Int. No. 332 (Councilmembers Brewer, et al.), and Int. No. ### (Councilmember Vallone), New York City Council Health & Parks Committee Hearing, Thursday, Oct. 14, 2010, to extend New York City’s outdoor smoking ban to pedestrian plazas and city parks. Repace JL. Expert Witness Report and Declaration, in the matter of Birke v. Oakwood, Superior Court of the State of California, County of Los Angeles, Northwest District,



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Case No. LC 085 905, April 9, 2010. Repace JL. Expert Report for the Inni á Gota Homeowners Association, Hoyvik, Faroe Islands, Denmark, April 24, 2010. ANALYSIS OF THE AIR QUALITY IMPACT OF PROPOSED TÓRSHAVN POWER PLANT. Repace JL. Indoor and outdoor carcinogen pollution on a cruise ship. Presented at the 14th Annual Conference of the International Society of Exposure Analysis, Philadelphia, PA. 17-21 October 2004. Repace JL. MEASUREMENTS OF OUTDOOR AIR POLLUTION FROM SECONDHAND SMOKE ON THE UMBC CAMPUS. A report for University Health Services, UMBC, May 4, 2005 Surgeon General, 2010. How tobacco smoke causes disease: the biology and behavioral basis for smoking-attributable disease : a report of the Surgeon General. – Rockville, MD: Dept. of Health and Human Services, Public Health Service, Office of Surgeon General, 2010. Turner DB. Workbook of Atmospheric Dispersion Estimates, 2nd Ed. An introduction to dispersion modeling. Lewis Publishers, Boca Raton, Washington, DC. 1994. About The Author: I have been studying outdoor and indoor air pollution since 1970. Specifically related to outdoor air pollution issues: In 1971, I became involved in a proposed sewage sludge incinerator in Washington DC, and wrote an expert report on the expected air pollution emissions from this project. I was an expert in a suit against the EPA over sewage sludge incineration in 1973, which resulted in EPA regulating sewage sludge incinerators under Section 112 of the Clean Air Act (National Emissions Standards for Hazardous Air Pollutants.) In 1973, I also testified as an expert witness before the Prince Georges County Council on behalf of the Piscataway Citizens Association in their petition to close a local sewage sludge incinerator. The Council voted to shut this incinerator down. In 1974, I accurately predicted mercury emissions from a trash incinerator located near an elementary school in Washington, DC and testified before the DC City Council. The American Physical Society recognized my work in a June 1974 article in the news magazine, Physics Today, on how physicists could work with environmental groups to solve environmental problems. In 1979, I joined the Air Policy Staff of the United States Environmental Protection Agency in Washington, DC, working on stationary source outdoor air pollution issues such as hazardous air pollutant emissions from coke ovens, power plants, incinerators, and smelters. In 1984, I received a U.S. EPA Award for Exceptional Performance for my work on indoor and outdoor air pollution. I retired from EPA in 1998. My full curriculum vitae is downloadable from my website, www.repace.com. Recently, I served as an expert witness on outdoor air pollution issues in 2 legal cases involving outdoor air pollution, in Las Angeles, and in the Faroe Islands, Denmark (Repace, 2010), and



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submitted invited testimony on the proposed outdoor smoking ban in New York City before the New York City Council (Repace, 2010). I conducted research on outdoor air pollution from secondhand smoke on the campus of the University of Maryland, Baltimore County (UMBC) (Repace, 2005), and on 2 cruise ships in the Caribbean (Repace, 2004), and authored a paper summarizing research on the benefits of banning smoking in certain outdoor settings (Repace, 2008).




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1.0. BACKGROUND: Mr. David Schuman resides at 11 Q Ridge Road, Greenbelt, MD 20770, in a cooperative association, Greenbelt Homes, Inc. (GHI). His unit is one of eight individual units in a connected row, brick construction with slate roof, built in the late 1930s. His unit adjoins the unit of his neighbors, the Mr. and Mrs. Popovic, who own Unit R. These neighbors are smokers. Mr. Schuman does not smoke. Nor does his neighbor on the other side of Mr. Schuman’s unit. 1.1. Mr. Schuman relates that for many years, his neighbors have smoked inside and outside their unit. Conditions have been very bad on occasion but inconsistently so. In recent months, particularly over the winter, conditions became intolerable for him on a more regular basis. He complains of a heavy smoke smell on most nights. On occasion, he was forced to open his windows during winter to dissipate accumulating secondhand smoke (SHS) infiltrating from Unit R. He became ill with bronchitis-like symptoms for several months and visited the doctor twice. 1.2. Subsequently, Mr. Schuman filed suit against Mr. and Mrs. Popovic, and their cooperative association, Greenbelt Homes, Inc. In a preliminary court hearing, Mr. Popovic announced that he and his wife agreed not to smoke inside their residence, but insisted on the right to continue to smoke outside their residence on their own property. However, Mr. Schuman and the Popovic’s neighbor in Unit S both stated that outdoor smoking by the Popovics penetrated into their homes when windows were opened. 1.3 Accordingly, in order to estimate the level of smoke that might penetrate the open windows of Mr. Schuman, I conducted an analysis, described in a previous report, entitled “RISK ASSESSMENT OF SECONDHAND SMOKE INFILTRATION IN A GREENBELT MD TOWN HOME: LOCATED AT 11 RIDGE ROAD Q PART II, OUTDOOR SMOKE” (Repace, 2010). This report concluded in part that “The Junker et al. (2001) median irritation level of 4.4 µg/m3 is exceeded at a distance of 4 m (13.4 feet) downwind distance from cigarette to window in the most favorable dispersion case, ranging up to a distance of 12.6 meters (41.3 feet) at night in the least favorable dispersion case. In the evening a single smoker at a distance of greater than 40 feet would cause irritation. For multiple smokers, the concentrations at a given distance would increase proportionately. These occasions when the wind blows from Unit R to Unit Q would happen 28% of the time on the garden side and 35.5% of the time on the service side. I conclude that smoking outdoors in the yards of Unit R would be capable of causing a nuisance in Unit Q a significant portion of the time.” This conclusion was derived from a calculation of the downwind concentration of cigarette smoke using the Gaussian Plume model. ___________________ *This version has several typographical errors corrected from the version originally sent.



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2.0. CALCULATION OF EXPECTED PPAH LEVELS. Table 1 gives the estimated fine particle (PM2.5) concentration from secondhand smoke versus the estimated particulate polycyclic aromatic hydrocarbon (PPAH) from secondhand smoke. Columns 3 and 4 are calculated in Repace Report #2 (Repace, 2010) in Table 4, and Columns 5 and 6 are calculated respectively by multiplying columns 3 and 4 by 0.05% respectively (Repace et al., 2010). Table 1. Estimated PM2.5 (in micrograms per cubic meter, µg/m3) and PPAH concentrations (in nanograms per cubic meter, ng/m3) from secondhand smoke at smoker-to target distances x ranging from 1 to 15 meters, for daytime and nighttime atmospheric stability conditions. PPAH = 0.05% PM2.5.

1. x meters

2. x feet

3. PM2.5 Day

(µg/m3)

4. PM2.5 Night (µg/m3)

5. PPAH Day

(ng/m3)

6.PPAH Night (ng/m3)

1 3.28 59.3 387 28.5 186 3 9.84 7.78 55.4 3.73 26.6 5 16.4 3.03 22.5 1.45 10.8 7 23.0 1.62 12.4 0.78 5.95 10 32.8 0.84 6.6 0.403 3.17 15 49.2 0.397 3.22 0.19 1.55

2.1. MEASUREMENT OF PPAH LEVELS IN THE SCHUMAN RESIDENCE.

2.11. On Saturday, July 16, 2011, I arrived at Mr. David Schuman’s residence at

11Q Ridge Ct., Greenbelt, with two EcoChem PAS 2000ce PPAH monitors. The monitors, labeled “A” (.174 files) and “B” (.159 files) were deployed respectively in Mr. Schuman’s living room on the back of the couch in front of the open living room window (Monitor “A”), and on Mr. Schuman’s dining room table adjacent to the open dining room window. Figures 1 and 2 show the deployment location of each monitor. Table 2 gives my time-activity pattern during the monitor deployment. For the purposes of comparison between smoking and nonsmoking periods in interpreting the readings, the period approximately from 6:40 to 7:00 PM is designated as a smoke-free period, and approximately from 7:00 PM to 7:20 PM as a smoking period, based on odor detection and observation of activity by Mr. Popovic in his front yard. Mr. Popovic was observed sitting in the chair shown in Figure 3, which is approximately 27 feet (8.2 meters) from the left hand corner of Mr. Schuman’s dining room window as viewed from outside the building, and approximately 43 feet (13 meters) from Mr. Schuman’s living room window. The PPAH monitors were located inside the open windows as shown in Figures 1 and 2.



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Table 2. Time-Activity Pattern for PPAH Monitor Deployment, Sat. July 16, 2011, 11 Q Ridge Ct., Greenbelt, MD. TIME SMOKING ACTIVITY 6:40 PM No odor of smoke, no smoking activity observed. No cooking in Schuman

residence. Monitors A and B turned on. Both Mr. Schuman and I are present. 7:01 PM Schuman dog barks. Smoke odor detected in Schuman living room; Mr.

Popovic observed smoking in his front (garden-side) yard, sitting in a chair adjacent to his front porch.

7:15 PM Stronger smoke odor detected in Schuman living room 7:18 PM The smoke irritates my lungs, throat, and eyes. I can smell the smoke in Mr.

Schuman’s living room, kitchen, and upstairs bedroom on the Popovic side of the building.

7:55 PM Smoke odor detected in kitchen 8:00 PM Mr. Popovic observed to go into his house. No smoking. Greenbelt MD Temperature 80 deg F; RH 50% at 8 PM <wunderground.com> 8:20 PM Measurements terminated.

Figure 1. Deployment of Monitor B in Mr. Schuman’s kitchen.



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Figure 2. Deployment of Monitor A in Mr. Schuman’s living room.



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Figure 3. Location of Mr. Popovic’s outdoor smoking chair. The chain-link fence borders the common sidewalk between the Popovic and Schuman units.



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2.2. Figure 4 shows a plot of predicted PPAH concentrations as a function of downwind distance from the source, where the PPAH values are derived from Table 1 above. Both monitors detected PPAH inside Mr. Schuman’s home from Mr. Popovic’s smoking at distances ranging from 8 to 13 meters from the cigarette source. The average incremental (background-subtracted) ~20 min ave. PPAH concentration for monitor “B”, located in Mr. Schuman’s dining room was 1.54 ng/m3, corresponding to a PM2.5 level of 3.1 µg/m3, while for monitor “A” in Mr. Schuman’s living room, the incremental PPAH value was 0.94 ng/m3, corresponding to a PM2.5 level of 1.9 µg/m3, within the predicted range given in Table 1.

Figure 4. Plot of the expected range of PPAH concentrations from smoking a single cigarette outdoors from the Schuman residence by cigarette smoking in the Popovic yard. The upper (blue) curve shows the expected value for very stable night-time conditions, while the lower (red) curve shows the expected value for less stable day-time conditions, as discussed in Schuman Report #2 (Repace, 2010). The asterisk (*) shows the actual background subtracted PPAH reading of Monitor B between 7:00 and 7:20 PM in the evening inside Mr. Schuman’s kitchen. The circle (o) shows the actual background subtracted PPAH reading of Monitor A between ~7:00 and 7:20 PM in the evening inside Mr. Schuman’s living room. Both values lie within the predicted range.



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Figure 5. Plot of the median PPAH concentrations before and during smoking a single cigarette outdoors from the Schuman residence by cigarette smoking in the Popovic yard. Carcinogenic PPAH levels are doubled over background levels in Mr. Schuman’s dining and living rooms. The smoke levels were also quite irritating to the eyes, nose, throat, and lungs of the investigator during exposure, while the background levels were not. 3.0. DISCUSSION.

I measured 10 second average PPAH with two secondhand smoke-calibrated (Repace, 2004) real-time EcoChem PAS 2000CE® monitors [EcoChem Analytics, League City, TX]. Secondhand smoke is a known human carcinogen (NIEHS, 2000) Polycyclic aromatic hydrocarbons (PAHs) are a diverse group of carcinogens formed in the incomplete combustion of organic material; PAHs are potent animal carcinogens that induce respiratory tract tumors upon inhalation (Hecht, 2003). PAH have been implicated in heart disease and stroke mechanisms as well (Glantz and Parmley, 1991). Particle-bound PAHs (PPAHs) are compounds with 4 or more benzene rings emitted by



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secondhand smoke, diesel exhaust, incense, wood smoke, and smoky candles; in contrast, burning toast and frying hamburgers do not appear to be important sources of PPAH emissions (Ott and Siegmann, 2006). Thus, measurement of PPAH in conjunction with PM2.5 helps confirm the presence of secondhand smoke. Repace et al. (2011) found that incremental (indoor – outdoor) PM2.5 was 0.05% PPAH; incremental PM2.5 correlated significantly with incremental PPAH (R2 = 0.79) in 10 smoky casinos in Reno, Nevada.

The classic PPAH compound is benz(α)pyrene, which is a known human lung

carcinogen. Total PAH include both gaseous and particulate phase compounds, and are thermally stable. There are more than 100 PAH molecules; measurement of PPAH underestimates the total number of toxic PAH in the air. Portable real-time PAH monitors have been developed, calibrated against standard gas-chromatography/mass spectrometry methods, and deployed in environmental epidemiology studies.

A lightweight battery-powered data logging respirable PPAH monitor, the

EcoChem PAS 2000CE, is deployed in these experiments. This monitor operates on the principle of photoelectric charging: airborne particles are drawn into a tube, illuminated with ultraviolet photons, and produce photo-electrons and positive ions which are collected by an alternating electric field, which is measured using a current amplifier. Only fine particles can be charged efficiently by this method, because electron recombination with the positive ions increases with particle size.

Photoelectric charging is surface-sensitive and therefore yields information on the surface concentrations of fine particles suspended in a gas. Particles from other than combustion sources generally cannot be charged photoelectrically due to the absence of PPAH. A linear relation between the photoelectric activity and the PPAH mass concentration in air has been determined. The operating environment for the PAS 2000CE is 5oC to 40oC; the fraction of particle mass due to PPAH is independent of location and weather conditions. Outdoors, the major sources of PPAH particles are diesel exhaust and cars with defective catalytic converters. PPAH particles are submicron in size, or “nanoparticles.” (Repace, 2004).

Figure 5 shows that the median levels of PPAH in Mr. Schuman’s living room and dining room doubled during Mr. Popovic’s smoking.

CONCLUSIONS:

1. I measured particulate polycyclic aromatic hydrocarbons in the living room and dining room of Mr. David Schuman from about 6:30 to 8:00 PM on Saturday, July 16, 2011, in the presence and absence of observed outdoor cigarette smoking by Mr. Darko Popovic, Mr. Schuman’s next-door neighbor.

2. I smelled and was irritated by cigarette smoke odor emanating from Mr. Popovic’s outdoor smoking and infiltrating into Mr. Schuman’s living room, dining room, and upstairs bedroom window.



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3. I confirmed the presence of outdoor cigarette smoke penetrating into Mr. Schuman’s residence objectively by measuring particulate carcinogens known to be present in cigarette smoke.

4. During the ~20 minute smoking period, median carcinogenic PPAH levels doubled over the previous ~20 minute nonsmoking period background.

5. I conclude to within a reasonable scientific certainty, that outdoor smoking by Mr. Popovic penetrated through the open windows of Mr. Schuman’s home.

6. Due to the irritating nature of the tobacco aerosol and its carcinogenic nature, I conclude to within a reasonable scientific certainty, that outdoor smoking by Mr. Popovic in his front yard at 8 and 13 meters distant from Mr. Schuman’s open windows, is both irritating and carcinogenic.

Signed

James Repace, MSc. July 18, 2011 References Repace JL, Jiang RT, Cheng K-C, Acevedo-Bolton V, Klepeis NE, Ott WR, and Hildemann LM. Fine Particle and Secondhand Smoke Air Pollution Exposures and Risks Inside 66 US Casinos. Environmental Research 111 (2011) 473–484. Repace JL. 2004. Respirable particles and carcinogens in the air of Delaware hospitality venues before and after a smoking ban. JOEM 46:887-905. Repace JL. Indoor and outdoor carcinogen pollution on a cruise ship. Presented at the 14th Annual Conference of the International Society of Exposure Analysis, Philadelphia, PA. 17-21 October 2004. Repace JL. MEASUREMENTS OF OUTDOOR AIR POLLUTION FROM SECONDHAND SMOKE ON THE UMBC CAMPUS. A report for University Health Services, UMBC, May 4, 2005 Repace JL. Benefits of smoke-free regulations in outdoor settings: beaches, golf courses, parks, patios, and in motor vehicles. William Mitchell Law Review 34(4):1621-1638 (2008). Repace JL. Invited testimony Re: Proposed Bills Int. No. 332 (Councilmembers Brewer, et al.), and Int. No. ### (Councilmember Vallone), New York City Council Health &



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Parks Committee Hearing, Thursday, Oct. 14, 2010, to extend New York City’s outdoor smoking ban to pedestrian plazas and city parks. Surgeon General, 2010. How tobacco smoke causes disease: the biology and behavioral basis for smoking-attributable disease : a report of the Surgeon General. – Rockville, MD: Dept. of Health and Human Services, Public Health Service, Office of Surgeon General, 2010. About The Author: I have been studying outdoor and indoor air pollution since 1970. Specifically related to outdoor air pollution issues: In 1971, I became involved in a proposed sewage sludge incinerator in Washington DC, and wrote an expert report on the expected air pollution emissions from this project. I was an expert in a suit against the EPA over sewage sludge incineration in 1973, which resulted in EPA regulating sewage sludge incinerators under Section 112 of the Clean Air Act (National Emissions Standards for Hazardous Air Pollutants.) In 1973, I also testified as an expert witness before the Prince Georges County Council on behalf of the Piscataway Citizens Association in their petition to close a local sewage sludge incinerator. The Council voted to shut this incinerator down. In 1974, I accurately predicted mercury emissions from a trash incinerator located near an elementary school in Washington, DC and testified before the DC City Council. The American Physical Society recognized my work in a June 1974 article in the news magazine, Physics Today, on how physicists could work with environmental groups to solve environmental problems. In 1979, I joined the Air Policy Staff of the United States Environmental Protection Agency in Washington, DC, working on stationary source outdoor air pollution issues such as hazardous air pollutant emissions from coke ovens, power plants, incinerators, and smelters. In 1984, I received a U.S. EPA Award for Exceptional Performance for my work on indoor and outdoor air pollution. I retired from EPA in 1998. My full curriculum vitae is downloadable from my website, www.repace.com. Recently, I served as an expert witness on outdoor air pollution issues in 2 legal cases involving outdoor air pollution, in Los Angeles, and in the Faroe Islands, Denmark (Repace, 2010), and submitted invited testimony on the proposed outdoor smoking ban in New York City before the New York City Council (Repace, 2010). I conducted research on outdoor air pollution from secondhand smoke on the campus of the University of Maryland, Baltimore County (UMBC) (Repace, 2005), and on 2 cruise ships in the Caribbean (Repace, 2004), where I measured PPAH and PM2.5, from outdoor smoking, and authored a paper summarizing research on the benefits of banning smoking in certain outdoor settings (Repace, 2008).



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Appendix Table A1. Data Statistics for EcoChemPAS2000ce Carcinogen Monitors Deployed in 11Q Ridge Ct. on Saturday, July 15. 2011.

Statistics Living Room Dining Room Background Smoking Background Smoking Number of 10 sec. data Points, n

120 112 120 112

Units -----------> ng/m3 ng/m3 ng/m3 ng/m3 Minimum 0 0 0 0 Maximum 6 5 9 9 Mean 1.34 2.28 1.94 3.48 Median 1 2 1.5 3 Std Deviation 1.25 1.34 2.03 2.04 Variance 1.57 1.79 4.14 4.14 Std Error 0.114 0.126 0.186 0.192 Net PPAH above background

2.28 - 1.34 = 0.94 3.48 - 1.94 = 1.54

Calibration The calibration of the EcoChem PAS 2000ce against cigarette smoke is described in Repace (2004). The lower limit of detection is 1 ng/m3, and the precision is 1 ng/m3. However, time-averaged values less than 1 ng/m3 may be accurately quantified by time-averaging repeated measurements. Locations of Mr. Schuman and Mr. Repace when experiencing irritation from tobacco smoke (Figs. A1, A2, A3).

Fig A1. The author on the Living Room Sofa.



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Fig A2. The author in the Upstairs Bedroom.

Fig A3. The author in the Kitchen.



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Fig A4. Location of Mr. Schuman during exposure.



CURRICULUM VITAE ALFRED MUNZER, M.D. PAGE 2 of 4 MILITARY SERVICE: Major, USAF MC, 1972-1974. HOSPITAL APPOINTMENTS: Director of Pulmonary Medicine, Washington Adventist

Hospital, Takoma Park, MD 1974-Present.

Chief, Pulmonary and Infectious Disease Service, Malcolm Grow USAF Medical Center, Andrews AFB, MD, 1973-1974.

Director, Pulmonary Function Laboratory, Malcolm Grow USAF Medical Center, Andrews AFB, MD, 1972-1973.

TEACHING APPOINTMENTS: Clinical Assistant Professor of Medicine, Georgetown

University School of Medicine, Washington, DC 1974-Present.

Lecturer, School of Allied Health Care Sciences, Columbia Union College, Takoma Park, MD 1974-Present.

OTHER PROFESSIONAL APPOINTMENTS: Consultant, Department of Justice

Member, Editorial Board, American Family Physician OFFICES HELD: President American Lung Association May 1993-May 1994. President-Elect American Lung Association May 1992-May 1993. Chairman, Program and Budget Committee American Lung Association, 1989-1991. Chairman, World Lung Health Committee American Lung Association, 1991-1992. President, American College of Chest Physicians, Potomac Chapter

Chairman, Tuberculosis Committee District of Columbia Lung Association


CURRICULUM VITAE ALFRED MUNZER, M.D. PAGE 3 of 4 Chairman, Government Relations Committee American Lung Association/American Thoracic Society. President, District of Columbia Lung Association, 1979-1981.

Vice President, District of Columbia Thoracic Society, 1977-1981.

MEMBER:

Board of Directors, American Lung Association, 1982-1994 Board of Directors, American Thoracic Society, 1981-1983. Board of Directors, American Lung Association of District of Columbia

Board of Trustees, Action on Smoking and Health Board of Directors, American Technion Society, D.C. Chapter

Board of Directors, Cherish our Children LISTINGS: Who’s Who in the East Who’s Who in Health and Medicine Best Doctors in America, Woodward/White, Inc. HONORS: Will Ross Medal, American Lung Association, 2000 Breath of Life Award, American Lung Association of Maryland, 2000 STATE LICENSES: Maryland, New York, California BOARD CERTIFICATION: Subspecialty of Critical Care Medicine, 1987. Subspecialty of Pulmonary Medicine, 1972. Diplomate, American Board of Internal Medicine, 1972. PUBLICATIONS: Contributor, The Lippincott Manual of Nursing Practice,

Third Edition, 1982.

Waterhouse, C.; Taves, D.; and Munzer, A.; (1980) Serum Inorganic Fluoride: Changes related to previous fluoride intake, renal function and bone resorption. Clinical Science 58: 145-152.


CURRICULUM VITAE ALFRED MUNZER, M.D. PAGE 4 of 4

Munzer, A. Smoking and Smoking Cessation. Textbook of Internal Medicine. Wm. N. Kelley, Editor. Lippincott-Raven, Philadelphia 1997. Munzer, A.; (1995) Asthma: Pointing the way toward finding a cure. Am. J. Resp. Crit. Care Med. 152:3.

Munzer, A.; (1993) The American Lung Association: A partnership of science and advocacy in defense of the environment. Otolaryngology- Head and Neck Surg. 109:804-805.

Munzer, A. (1994) Physicians and the fight against air pollution. Am. Fam. Physician 49:1329-1330.

OTHER ACTIVITIES: Playwriting, Visiting Artist, Woodstock Artists Association, July 1980.



































































































































































































IN THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY MARYLAND Civil Division

DAVID S. SCHUMAN ) ) Plaintiff, ) ) vs. ) Case Number: CAL-10-6047 ) GREENBELT HOMES, INC., et al. ) Judge Albert W. Northrop ) Defendants. )

PLAINTIFF DAVID S. SCHUMAN’S PROPOSED

SUMMARY OF TESTIMONY PRESENTED AT TRIAL, FINDINGS OF FACT AND CONCLUSIONS OF LAW

TABLE OF CONTENTS

Summary of Testimony Presented at Trial………………………….……..1

Background of GHI’s Cooperative Association and Homes at Issue………………………………………..……………………………...1 Walls, Attic and Crawl Space Shared by Mr. Schuman, the Popovics and Ms. Ipolito.……………………………………………………………2 GHI’s Governing Documents…………………………...…….…………3 GHI’s “Nuisance Clause”…………………….......................................5 Testimony of Popovics’ Former Neighbors, Mr. and Mrs. Hammett……………………………………………………………..6 Testimony of Popovics’ Other Next-Door Neighbor, Dory Ipolito…...7 Third-Party Confirmation of Secondhand Smoke Smell in Schuman House…………………………………………………………………….10 Mr. Schuman’s Complaints about the Popovics’ Smoking in the 1990s……………………………………………………………………..12


ii

Mr. Schuman’s Renovations Performed by Frank Gervasi…………14 Mr. Schuman’s Complaints about the Popovics’ Smoking After 2007……………………………………………………………………....15 Mr. Repace’s July 2009 Report……………………………………..…19 September 28, 2009 Member Complaint Panel……………………..20 Member Complaint Panel’s October 8, 2009 Decision……………..21 Mr. Schuman’s Medical Damages…………………………………….24 Mr. Schuman’s Testimony about Why He Likes Living in GHI……..26 Mr. Schuman’s Efforts to Mitigate the Problem……………………...26 Mr. Schuman’s Litigation Costs………………………………………..27 Ways in which Popovics’ Smoking has Altered Mr. Schuman’s Living Conditions………………………………………………………………..27 Reduction in Value of Mr. Schuman’s Home………………………...28 Mr. Repace’s Background……………………………………………...28 How Secondhand Smoke Travels Through the Air………………….31 Caulking and Sealing Walls Does Not Prevent Secondhand Smoke from Migrating Through Holes in the Walls…………………………..32 Dangers of Secondhand Smoke……………………………………....33 Mr. Repace’s Indoor Air Study at Mr. Schuman’s Home…………...34 Mr. Repace’s Outdoor Air Study at Mr. Schuman’s Home…………36 Use of HEPA Filters and Fans to Protect Nonsmokers from the Dangers of Secondhand Smoke……………………………………....39 1997 Martel Laboratory’s Carbon Monoxide Test of Popovic Home……………………………………………………………………..40


iii

The Safe Place for Mr. Popovic to Smoke is in the Middle of the Common Area Behind the Schuman and Repace Homes………....41 Evidence of Mr. Schuman’s Medical Damages from Exposure to Secondhand Smoke…………………………………………………….41 Testimony of Defense Expert, Dr. Ronald E. Gots……………….....47 Testimony of GHI’s Corporate Designee, Gretchen Overdurff….....51 Testimony of GHI Member Complaint Panel Chair, Silvia Lewis…..55 Testimony of GHI President, Tokey Boswell…………………….......58 Darko Popovic’s Testimony…………………………………………....63 GHI’s Defense that Mr. Schuman Could Have “Taken his Grievance to the Membership”……………………………………………………..66 Mr. Schuman’s Rebuttal Testimony as to Why Closing Windows is Not an Option to Prevent the Popovics’ Patio Smoking from Entering His Home.........................................................................................67 Mr. Schuman’s Rebuttal Testimony as to GHI’s Defense that Mr. Schuman could have “Taken his Grievance to the Membership”………………………………………………………….....68 Mr. Repace’s Rebuttal Testimony……………………………………..69

Facts of Which the Court Took Judicial Notice……………………….…72

2006 Surgeon General’s Report……………………………………....72 History of Studies Concerning the Health Consequences of Secondhand Smoke…………………………………………………….72 Composition of Tobacco Smoke......................................................75

Definition of “Secondhand Smoke…………………………………….77

Secondhand Smoke and Immediate Threat to the Normal Functioning of the Heart, Blood and Vascular Systems…………….78


iv

Conclusion to the Surgeon General’s 2006 Report…………………81 HVAC Systems Cannot Fully Control Exposures to Secondhand Smoke…………………………………………………………………....84

Positive Effect of Smoking Bans………………………………………85

National, State and Local Laws Protecting the Public from the Dangers of Secondhand Smoke……………………………………....87 Outdoor Smoking Bans………………………………………………...90

There is No Risk-Free Level of Exposure of Secondhand Smoke……………………………………………………………………90 2010 Surgeon General’s Report……………………………………....90

Legal Principles Involved in this Case……………………….…………...92

I. Introduction……………………………………………………....92

II. Nuisance……………………….………………………………....94

A. It is easier for a plaintiff to prove a nuisance under GHI’s “nuisance clause” than under Maryland common law…….…94 B. Definition of nuisance under Maryland Common Law………………………………………………………………..95 C. In nuisance cases, corroboration from similarly situated neighbors is instructive to show that these neighbors have experienced the same discomfort from the same source…...98 D. Legal activities may constitute a nuisance...................99 E. In order to constitute a nuisance, secondhand smoke does not have to be injurious to the plaintiff’s health, but rather it is sufficient if the smoke is so offensive as to interfere with the comfortable enjoyment of the plaintiff’s home………….104 F. It is not necessary for a plaintiff in a nuisance action to vacate his or her home due to the nuisance………………...105


v

G. There is no “right to smoke.”…………………………..105 H. Secondhand smoke is a nuisance under the laws of other states……………………………………………………..107 I. Secondhand smoke is a “nuisance per se” rather than a “nuisance in fact.”………………………………………………114

III. Trespass……………………….……………………………....114 IV. Breach of Contract…………………………………………..…115

A. Under GHI’s Mutual Ownership Contract, GHI is the landlord and Mr. Schuman and the Popovics are tenants, and therefore, pursuant to the Mutual Ownership Contract, GHI has the power to enforce the “nuisance” clause contained in the Mutual Ownership Contract and to take action to prevent the Popovics’ from smoking in their home or on their patio……………………………………………………………...116 B. Covenant of Quiet Enjoyment…………………………118

1. Other Duties of Landlords………………………122

C. Mr. Schuman is a third-party beneficiary of the Popovics’ Mutual Ownership Contract……………………….123

V. Negligence……………………………………………………...124 VI. The “Business Judgment Rule”…………………………..…..125

A. The “business judgment rule” does not preclude litigation of complaints sounding in tort or contract against a corporation………………………………………………………126 B. The “business judgment rule” does not preclude litigation of complaints against the corporation where the corporation has engaged in conduct that “represents a breach of their fiduciary obligations.”………………………………….127

VII. Declaratory Judgment…………………………………………129


vi

VIII. Injunction………………………………………………………..131 IX. “Continuous Violation” Exception to the Statute of Limitations…………………………………………………………...132 X. Damages………………………………………………………..132

A. The term “‘harm to property’ should be construed broadly to include intangible tortious interferences of plaintiffs’ use and enjoyment of their properties……………………….133 B. As the owner of his home, Mr. Schuman is competent to testify as to the value of his home without additional expert testimony……………………………………………………..…133 C. The health risks that exposure to secondhand smoke clearly poses nevertheless justifies the entry of an injunction prohibiting the Popovics from smoking in their home or on their property……………………………………………………134 D. The “Third-Party Litigation” exception to the “American Rule” on attorney’s fees……………………………………….137

Findings of Fact and Conclusion of Law……………………….……….138

Physical Layout of Schuman and Popovic Homes…...........138 GHI’s Mutual Ownership Contract……………………………139

Dangers of Secondhand Smoke……………………………...139 The Migration of Secondhand Smoke into Mr. Schuman’s Home…………………………………………………………….140 GHI’s Failure to Take Action to Enforce the “Nuisance Clause” of the Popovics’ Mutual Ownership Contract………………..140 Nuisance………………………………………………………...142

Trespass………………………………………………………...146

Breach of Contract (against the Popovics) under a Third-Party Beneficiary Theory……………………………………………..147


vii

Negligence (against the Popovics)…………………………...148 Declaratory Judgment and Permanent Injunction…………..148

Breach of Contract (against GHI) under a Breach of the Implied Covenant of Quiet Enjoyment Theory……………...149 Negligence (against GHI).....................................................150 “Continuous Violation” Exception to the Statute of Limitations………………………………………………………151 The “Business Judgment Rule”……………………………….152 GHI’s Claim that Mr. Schuman Failed to “Take the Issue to the Membership”……………………………………………………152 GHI’s Claim that Mr. Schuman’s Renovations Caused a Break in the Seals Placed by GHI in the 1990s and Resulted in Mr. Schuman’s Injuries……………………………………………..154 Damages………………………………………………………..155



IN THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY MARYLAND Civil Division

DAVID S. SCHUMAN ) ) Plaintiff, ) ) vs. ) Case Number: CAL-10-6047 ) GREENBELT HOMES, INC., et al. ) Judge Albert W. Northrop ) Defendants. )

PLAINTIFF DAVID S. SCHUMAN’S PROPOSED SUMMARY OF TESTIMONY PRESENTED AT TRIAL, FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiff David S. Schuman, by and through his counsel, J.P.

Szymkowicz and John T. Szymkowicz of the Law Firm of Szymkowicz &

Szymkowicz, LLP, respectfully requests that this Honorable Court approve,

adopt, and include in its written opinion, the following proposed summary

of testimony presented at trial, findings of fact and conclusions of law:1

Summary of Testimony Presented at Trial

Background of GHI’s Cooperative Association and Homes at Issue

1. The homes at issue are three adjacent homes on a row of eight

townhouses located in Greenbelt Homes, Inc.’s cooperative. Ipolito

Testimony, 1-134.

1 A copy of the foregoing document in .doc format was provided to Judge Northrop’s chambers via both DVD-ROM and email (with a .doc copy emailed to Mr. and Mrs. Popovic and Defendant Greenbelt Homes, Inc.’s counsel).


2

2. The Popovics’ home is located between the Schuman and Ipolito

units. Ipolito Testimony, 1-134.

3. The Popovics moved into this row of townhouses after Mr. Schuman

and Ms. Ipolito were already living there. Schuman Testimony, 1-215,

Ipolito Testimony, 1-134.

4. GHI is a “not-for-profit corporation, which enables individual families,

through cooperative endeavor, to fulfill their housing needs in comfortable,

pleasant surroundings at relatively low costs.” See Plaintiff Exhibit 19

[page 1 of GHI’s Member Handbook].

5. The undisputed evidence is that GHI is a “wonderful place to live”

and was the “first planned community in the United States with individual

pathways built for school children not having to cross a major road. All the

major facilities are in the center of the town” and GHI is a “very walkable

community” where residents “live in close proximity to our neighbors.”

Schuman Testimony, 1-205.

Walls, Attic and Crawl Space Shared by Mr. Schuman, the Popovics and Ms. Ipolito

6. The wall between the Schuman and Popovic homes is a “common

wall” in which the utilities and plumbing for both homes are located,

whereas, the wall between the Popovic and Ipolito homes is a “brick

firewall.” Gervasi Testimony, 1-29.

7. Mr. Schuman described these walls as:


3

When the units were built, every two units, there’s a solid wall between them. From what I can see, it’s brick. There may be some other material besides the brick. 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 cabinet is out. It’s not a solid wall in any respect. Utilities run up and down between the two units. It’s very different from the brick wall that separates every two units. Schuman Testimony, 1-216 to 1-217.

8. The wall between the Schuman and Popovic homes has a “number

of penetrations” with electrical outlets that are “not sealed” and pipes

protruding through the wall. Gervasi Testimony, 1-30.

9. The attic between the Schuman and Popovic homes is a “common

attic” with “open gap flooring” that is not sealed. Gervasi Testimony, 1-31.

10. There is a “crawl space” in the basement between the Schuman and

Popovic homes which is “wide open” with no barrier of any kind separating

the homes. Gervasi Testimony, 1-32.

GHI’s Governing Documents

11. All residents of GHI sign a “Mutual Ownership Contract,” a

contractual agreement between the member and GHI that establishes the

rights and obligations of both parties. 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.” Schuman


4

Testimony, 1-205. See also Plaintiff Exhibit 19 [page 2 of GHI’s Member

Handbook], Plaintiff Exhibit 20 [Mr. Schuman’s Mutual Ownership

Contract] and Plaintiff Exhibit 21 [the Popovics’ Mutual Ownership

Contract].

12. GHI’s Member Handbook states that “GHI establishes rules and

regulations for the safety, care, and cleanliness of the dwelling unit and

surrounding premises and for the preservation of order and comfort

therein.” See Plaintiff Exhibit 19 [the letter serving as the preface to GHI’s

Member Handbook].

13. GHI’s Mutual Ownership Contract provides that “[u]nder Maryland

law, this Contract creates a legal relationship between GHI and Member as

that of landlord and tenant.” See page 1 of Plaintiff Exhibit 20 [Mr.

Schuman’s Mutual Ownership Contract] and page 1 of Plaintiff Exhibit 21

[the Popovics’ Mutual Ownership Contract].

14. GHI’s Mutual Ownership Contract further provides that “[t]his

Contract establishes the rights and responsibilities of GHI and Member in

connection with the Perpetual Use and the Premises in addition to those

rights and responsibilities established by Maryland law.” See page 1 of

Plaintiff Exhibit 20 [Mr. Schuman’s Mutual Ownership Contract] and page 1

of Plaintiff Exhibit 21 [the Popovics’ Mutual Ownership Contract].


5

15. GHI members are also subject to GHI’s Bylaws and Member

Handbook. Schuman Testimony, 1-205. See also Plaintiff Exhibit 19

[GHI’s Member Handbook].

16. GHI’s Bylaws “provide for democratic procedures” because “[f]rom a

practical standpoint direct authority over business affairs is given to the

Board of Directors, as is the case in any business that is too unwieldy for

direct operation by its members or stockholders.” See Plaintiff Exhibit 19


GHI’s “Nuisance Clause”

17. GHI’s “Mutual Ownership Contract” contains a “nuisance clause” that

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 agreed 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. [emphasis added]. See page 3 of Plaintiff Exhibit 20 [Mr. Schuman’s Mutual Ownership Contract] and page 1 of Plaintiff Exhibit 21 [the Popovics’ Mutual Ownership Contract].


6

Testimony of Popovics’ Former Neighbors, Mr. and Mrs. Hammett

18. For about a year in 1995 or 1996, the Popovics lived three units

away at a distance of about forty to fifty feet from Carolyn and Kevin

Hammett on the other side of the court from where the Popovics currently

live. Carolyn Hammett Testimony, 1-91 to 1-93.

19. When the Popovics were smoking on their patio, the smoke would

travel to the Hammetts’ home and enter the Hammetts’ home through their

attic, the upstairs bedroom and the living room/dining room on the first

floor. Carolyn Hammett Testimony, 1-92 to 1-94.

20. Secondhand smoke from the Popovics’ cigarettes “smelled like really

bad cigarette smoke, very strong cigarettes.” Carolyn Hammett

Testimony, 1-95.

21. Mr. Hammett believed that the Popovics’ smoking was a “nuisance”

and “was irritating” because, “I, as a Greenbelt Homes member and

resident, have a right to not smell somebody else’s smoke.” Kevin

Hammett Testimony, 1-117, 1-127.

22. The Popovics’ smoking forced the Hammetts to “close their bedroom

window upstairs, living room window, [and] front door” because it was

“uncomfortable to smell that in [their] home.” Carolyn Hammett Testimony,

1-92 to 1-93.


7

23. Mr. Hammett believed that closing the windows deprived him of the

enjoyment of fresh air coming into his home and that closing his windows

was a “temporary solution” that “wasn’t a very desirable one.” Kevin

Hammett Testimony, 1-125.

24. After the Popovics’ moved to the Schuman side of the court, Mrs.

Hammett visited the home where the Popovics had lived and found “tar

residue” that left a “distinct outline on the wall” surrounding where pictures

had once hung. Carolyn Hammett Testimony, 1-111 to 1-112.

Testimony of Popovics’ Other Next-Door Neighbor, Dory Ipolito

25. Ms. Ipolito’s problem with the Popovics’ smoking began when the

Popovics moved to her side of the court in 1996. Ipolito Testimony, 1-135.

26. Whenever the Popovics smoked indoors previously, and now when

Mr. Popovic smokes outdoors, secondhand smoke enters Ms. Ipolito’s

home and travels through her home to her living room and the two

bedrooms that share the common wall with the Popovic home. Ipolito

Testimony, 1-134, 1-136.

27. Ms. Ipolito complained to GHI about the Popovics’ smoking, both

individually, and jointly with Mr. Schuman, in 1996 or 1997. Ipolito

Testimony, 1-135 to 1-136.

28. The caulking and sealing that GHI performed on the Schuman,

Popovic and Ipolito homes in the late 1990s did not solve the problem for


8

Ms. Ipolito, as she was “still having problems with smoke infiltration.”


29. After GHI’s caulking and sealing, the smoke would still enter Ms.

Ipolito’s home through the walls in the winter and would enter via open

windows in the summer. Ipolito Testimony, 1-137 to 1-138.

30. Ms. Ipolito was “fairly frustrated to the lack of action on the part of

the co-op” with regard to her complaints concerning the Popovics’

smoking. Ipolito Testimony, 1-138.

31. Ms. Ipolito “just tolerated” the Popovics’ smoking “until it got to the

point where it wasn’t tolerable anymore.” Ipolito Testimony, 1-138.

32. What made the situation intolerable for Ms. Ipolito, was the fact that

the Popovics’ smoking was beginning to affect her health by “trigger[ing]

wheezing,” causing her to “use the rescue inhaler to assist [her] breathing.”

Ipolito Testimony, 1-139 to 1-141.

33. Additionally, the Popovics’ smoking practices has caused Ms.

Ipolito’s chest to tighten during asthma attacks. Ipolito Testimony, 1-141 to

1-142.

34. Ms. Ipolito has taken efforts to close her windows whenever she is

home while the Popovics are smoking outside on their patio, but she

testified that “if I forget to shut the windows on the back of the house, the

garden side, however you want to describe it, which is where Mr. Popovic


9

smokes, and I come home, and the house has been closed up; the house

fills up with smoke.” Ipolito Testimony, 1-142 to 1-143.

35. Ms. Ipolito further testified about the effect the Popovics’ smoking

had on her living conditions:

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 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.” Ipolito Testimony, 1-144 to 1-145.

36. Additionally, Ms. Ipolito answered the question, “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?,” by stating:

Well, let me answer it this way: Last weekend, I think Saturday or Sunday was a really nice day. There was a breeze. It was fairly temperate in terms of the weather that we have had lately. I like to 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, I would like to have the windows opened. I can’t have the windows open. Ipolito Testimony, 1-146 to 1-147.

37. Moreover, Ms. Ipolito testified that during power outages in the heat

of the summer, she did not have the ability to simply run the air


10

conditioning to avoid the Popovics’ smoking and needed to open the

windows, despite the fact that this would allow the smoke to enter her

home, in order to cool down the house. Ipolito Testimony, 1-147.

38. During these power outages, Ms. Ipolito has had to sleep in her

guest bedroom on the other side of her home in order to alleviate the

effects of the Popovics’ smoke that enters her home. Ipolito Testimony, 1-

147.

39. Ms. Ipolito described that Mr. Popovic currently smokes on his patio

“after he gets home for about an hour, hour-and-a-half,” whereas, prior to

his wife’s sickness, “it could be for a longer period.” Ipolito Testimony, 1-

186 to 1-187.

40. Ms. Ipolito believes that her property “has diminished in value”

because she “can’t use it fully.” Ipolito Testimony, 1-190 to 1-191.

41. Ms. Ipolito testified that she did not choose to move out of her house

due to the Popovics’ smoking because “I love my house. I love GHI.”


Third-Party Confirmation of Secondhand Smoke Smell in Schuman House

42. Over the fifteen years since the Popovics moved to the Schuman

side of the court, the Hammetts would socialize with Mr. Schuman in his

home” as frequenly as once a month. Carolyn Hammett Testimony, 1-97,

1-101.


11

43. Similarly, Ms. Ipolito has visited Mr. Schuman’s home, “too many”

times to count. Ipolito Testimony, 1-148 to 1-149.

44. Mr. Hammett testified that there was a “definite” “cigarette odor” that

was “primarily on the first floor” of Mr. Schuman’s home and was present

both when Mr. Schuman’s windows were open and closed. Kevin

Hammett Testimony, 1-119 to 1-120.

45. Ms. Ipolito described this odor as “[s]tale smoke” and that “[i]t smells

like somebody has been smoking in the unit.” Ipolito Testimony, 1-149.

46. Ms. Ipolito further testified that the smell of cigarette smoke was

worse in Mr. Schuman’s home than in her home.” Ipolito Testimony, 1-

149.

47. Mrs. Hammett could “still smell smoke in Mr. Schuman’s home even

if his windows were closed” and stated that “[w]hen you walk into his

home, you can smell [a] residual sort of smoke odor” “pretty much every

time [she visited the Schuman home].” Carolyn Hammett Testimony, 1-

100 to 1-101.

48. Mrs. Hammett described a typical dinner at Mr. Schuman’s home as:

If you are – his dining room 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.” Carolyn Hammett Testimony, 1-97.


12

49. The Popovics’ smoking during Mrs. Hammett’s dinner at the

Schuman home caused her to suffer “very severe headaches” and an

upset stomach.” Carolyn Hammett Testimony, 1-98.

50. The Popovics’ smoking caused Mr. Schuman to close his windows

during the Hammetts’ visits to the Schuman home. Kevin Hammett

Testimony, 1-120.

Mr. Schuman’s Complaints about the Popovics’ Smoking in the 1990s

51. Mr. Schuman testified that the Popovics are “generally nice people”

and that he has “nothing against them as neighbors,” but that he has a

“very specific problem” that needs to “get resolved.” Schuman Testimony,

1-216.

52. Mr. Schuman’s problem with the Popovics’ smoking began for the

first time in 1996 upon the Popovics’ relocation from the other side of the

court (near the Hammetts) to the unit between Mr. Schuman and Ms.

Ipolito. Schuman Testimony, 1-226.

53. In order to solve the problem, Mr. Schuman and Ms. Ipolito “tried

very carefully to work it out with the Popovics in a polite way,” but after

these efforts were unsuccessful, the neighbors “wound up in front of the

complaints process with the cooperative.” Schuman Testimony, 1-226.

54. Although GHI sealed the walls between the Schuman, Popovic and

Ipolito homes, the sealing did not solve the problem for Mr. Schuman, but


13

rather the “smoking very much diminished because the Popovics changed

their smoking habits.” Schuman Testimony, 1-228.

55. Additionally, Mr. Schuman contended that:

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 much smoking, and I didn’t have the problem.” Schuman Testimony, 1-241 to 1-243.

56. Mr. Schuman testified that “[t]here was never any formal direction

form the cooperative or conclusions saying, okay, problem solved. You

know, let’s move on. And after we went through that formal complaints

process, the problem went away. That’s why I think Dory [Ipolito] and I

decided not to do anything anymore. It wasn’t a problem.” Schuman

Testimony, 1-230.

57. Mr. Schuman did not have “another problem” with the Popovics’

smoking “from early-1998, for ten years until all of a sudden it came back

with a vengeance in 2008 or so” because the Popovics “changed their

smoking habits.” Schuman Testimony, 1-230 to 1-231. See also GHI

Exhibit 27 [page 4 of memorandum dated July 19, 2007 from Mr. Schuman

to Frank Gervasi that states “A particularly bad problem I have had off and

on over the years is cigarette smoke from the neighbors filtering in to the

bathroom. I am not sure how it enters but suspect it is through the

plumbing. Do you have any recommendations on how to minimize this?].


14

Mr. Schuman’s Renovations Performed by Frank Gervasi

58. Frank Gervasi has been a licensed home contractor in Maryland

since 1977 and has renovated hundreds of homes in GHI over the years.

Gervasi Testimony, 1-26 to 1-27.

59. Frank Gervasi believed that “right up in the beginning,” Mr. Schuman

“wanted to make sure the walls were sealed fully because he was

concerned about smoke penetration.” Gervasi Testimony, 1-29. See also

Schuman Testimony, 1-223. See also GHI Exhibit 27 [page 4 of

memorandum dated July 19, 2007 from Mr. Schuman to Frank Gervasi].

60. Prior to working on the Schuman home, the only “sealing” that

Gervasi noticed was “some caulk on the baseboard molding in the kitchen

dining room area” and some “caulk around the joints of the wood” in the

attic. Gervasi Testimony, 1-31 to 1-32.

61. Gervasi’s renovation on the Schuman home included demolishing

the existing kitchen, removing the old cabinets, replacing them with new

cabinets and removing the ceiling and wall. Gervasi Testimony, 1-34.

62. In completing his renovations, Gervasi sealed “[e]verywhere there’s

a hole that we could see,” placed sealant inside the walls, and after he

reconstructed the walls, resealed the outside of the walls, and believed

that there was nothing he could do to further seal the unit. Gervasi

Testimony, 1-37.


15

63. In total, Mr. Schuman spent $65,000.00 on his renovations.


64. The type of sealing used by Mr. Gervasi in the Schuman home was

a combination of caulking and plastering. Gervasi Testimony, 1-38.

65. After Mr. Gervasi completed his work, GHI inspected and approved

the renovations and never indicated that it had any problems with this

work. Gervasi Testimony, 1-38. See also Schuman Testimony, 1-225.

66. No work performed by Mr. Gervasi during the renovations on the

Schuman home created any holes or gaps in the wall Mr. Schuman shared

with the Popovics. Gervasi Testimony, 1-88.

Mr. Schuman’s Complaints about the Popovics’ Smoking After 2007

67. Mr. Schuman believes that his problem with the Popovics’ smoking

returned in 2007 and “seemed to come on pretty suddenly.” Schuman

Testimony, 1-231.

68. The problem returned before Mr. Gervasi performed any renovations

on Mr. Schuman’s home. Gervasi Testimony, 1-29. See also Schuman

Testimony, 1-223. See also GHI Exhibit 27 [page 4 of memorandum dated

July 19, 2007 from Mr. Schuman to Frank Gervasi].

69. Mr. Schuman described this problem as “a problem I couldn’t live

with. It was an unbearable living situation.” Schuman Testimony, 1-231.


16

70. In order to solve the problem, Mr. Schuman spoke to Mrs. Popovic

“directly, on several occasions” and sent the Popovics and GHI a “series of

letters.” Schuman Testimony, 1-231.

71. The first letter Mr. Schuman sent to the Popovics was dated January

4, 2009, in which he states:

Over the past several weeks, on occasion cigarette smoke has been entering my apartment from the side closest to your unit. Recalling the history of this issue, and in the spirit of friendliness between neighbors in a cooperative, I ask for your assurance that you will take all necessary steps to prevent this from occurring in the future. See Plaintiff Exhibit 23 [letter from Mr. Schuman to Mrs. Popovic dated January 4, 2009].

72. On January 5, 2009, Mrs. Popovic responded to this request by

stating “[i]n the spirit of friendliness between neighbors in a cooperative, I

will take relevant steps to prevent this from occurring in the future.” See

Plaintiff Exhibit 24 [letter from Mrs. Popovic to Mr. Schuman dated January

5, 2009].

73. On January 16, 2009, Mrs. Popovic informed Mr. Schuman that GHI

re-sealed the wall between the Schuman and Popovic homes and that the

Popovics “bought a new air filter double in size and power than the old

one.” See Plaintiff Exhibit 25 [letter from Mrs. Popovic to Mr. Schuman

dated January 16, 2009].

74. On January 21, 2009, Mr. Schuman thanked Mrs. Popovic for her

efforts, but reiterated that his “understanding of this issue” “is that smoke

infiltration is not primarily a matter of seepage between seals in the walls


17

but rather perfusion between the walls and through other avenues,

primarily plumbing” and that he “will monitor the air quality to determine if

the seepage continues.” See Plaintiff Exhibit 26 [letter from Mr. Schuman

to Mrs. Popovic dated January 21, 2009].

75. On January 26, 2009, Mr. Schuman sent a letter to GHI that alerted

the cooperative that the smoking problem “has recently resurfaced,

particularly in the last several months” and that “[s]ealing and air filters

have not worked” and requested that GHI schedule a meeting “to

determine the best way to resolve the problem permanently” as he “cannot

live this way.” See Plaintiff Exhibit 27 [letter from Mr. Schuman to GHI

dated January 26, 2009].

76. Also on January 26, 2009, Mrs. Popovic sent a letter to GHI that

stated that “[m]y husband and I need your advice related to [the] ‘cigarette

smoke issue’” and that the Popovics are “willing to accept any good

suggestions from GHI maintenance office to solve this issue conveniently

to everyone’s satisfaction.” See Plaintiff Exhibit 28 [letter from Mrs.

Popovic to GHI dated January 26, 2009].

77. On February 2, 2009, Mr. Schuman sent a letter to Mrs. Popovic

(with a copy to GHI) in which he complained that he has “not been able to

sleep at night, am experiencing frequent headaches, and a persistent

cough requiring use of cough syrup with decongestant, cough

suppressant, and expectorant, along with pain relievers” and that he has


18

“had to open [his] windows to ventilate the unit, causing cold air to enter,

causing [his] houseplants to turn yellow and wither due to the draft, and

raising [his] heating bill.” See Plaintiff Exhibit 29 [letter from Mr. Schuman

to Mrs. Popovic dated February 2, 2009].

78. This letter also informed Mrs. Popovic that Mr. Schuman is also

“extremely concerned about the long-term health effects of secondhand

smoke” and that “[o]n a day to day basis, these medical conditions are not

tolerable and require your immediate attention.” See Plaintiff Exhibit 29

[letter from Mr. Schuman to Mrs. Popovic dated February 2, 2009].

79. On February 10, 2009, GHI’s General Manager, Gretchen Overdurff,

sent Mrs. Popovic a letter that set forth the “nuisance clause” section of

GHI’s Mutual Ownership Contract and stated that “[t]his paragraph covers

any act or behavior which would annoy or inconvenience one’s neighbors,

which could be interpreted to include unwanted or secondhand smoke

infiltration. A court of law considers secondhand smoke to be a nuisance.

Therefore, one might interpret this section to apply to smoking.” See

Plaintiff Exhibit 30 [letter from GHI to Mrs. Popovic dated February 10,

2009].

80. On February 23, 2009, GHI’s General Manager, Gretchen Overdurff,

sent Mr. Schuman a letter that stated that “[s]ince it is not likely that your

neighbors will abandon their practice of smoking within the home, it is


19

necessary to look to other means for relief.” See Plaintiff Exhibit 31 [letter

from GHI to Mr. Schuman dated February 23, 2009].

81. On February 26, 2009, Mr. Schuman sent GHI’s General Manager,

Gretchen Overdurff, a letter that stated that:

it may be GHI’s position that it is the recent renovations to my unit that have caused this problem. With due respect, that is not the case, as the smoking infiltration problem was present before the renovation, not present at times, present after the renovations, and rarely, not present after the renovations. It has come and gone in various forms over the years. There might have been no smoke for a few weeks, then one very bad night. The problem is virtually constant now. This anecdotal reporting should not be determinative. The current problem is real and is caused by my neighbor’s use of a hazardous material, for which all research suggests there is no safe medical level, which drifts onto my property. To bring this issue into stark relief, as we discussed at the meeting, during the warmer months, my neighbor smokes outside on the garden side patio causing neighbors on either side to remain indoors and close their windows. We cannot safely use our patios if this activity continues. See Plaintiff Exhibit 32 [letter from Mr. Schuman to GHI dated February 26, 2009].

Mr. Repace’s July 2009 Report

82. During the summer of 2009, Mr. Schuman hired James L. Repace,

MSc, a secondhand smoke consultant and biophysicist, who has published

86 scientific papers, of which 78 concern research on indoor air pollution

from secondhand smoke. Schuman Testimony, 1-272 to 1-273. See also

Plaintiff Exhibit 3 [page 1 of Mr. Repace’s Curriculum Vitae].

83. In order for Mr. Repace to study whether there were any measurable

amounts of nicotine in Mr. Schuman’s home, Mr. Repace directed Mr.


20

Schuman to use a “passive nicotine monitor [and] send it off to the lab.


84. Thereafter, Mr. Schuman received the monitor, opened the sealed

container to expose the monitor to the air by hanging it in his kitchen for

thirty days, resealing the monitor and sending the resealed monitor to the

laboratory. Schuman Testimony, 1-274 to 1-275; See also Schuman

Testimony 2-87 to 2-88

85. On July 20, 2009, Mr. Schuman provided GHI with a copy of Mr.

Repace’s report that established that unhealthy levels of secondhand

smoke were entering Mr. Schuman’s home. See Plaintiff Exhibit 33 [letter

from Mr. Schuman to GHI dated July 20, 2009].

September 28, 2009 Member Complaint Panel

86. On September 28, 2009, GHI’s Member Complaint Panel met with

Mr. Schuman and Mr. Repace separately from Mrs. Popovic to discuss

resolution of Mr. Schuman’s complaints. See Plaintiff Exhibit 41 [minutes

of GHI’s Member Complaint Panel’s meeting with Mr. Schuman on

September 28, 2009]; Plaintiff Exhibit 42 [minutes of GHI’s Member

Complaint Panel’s meeting with Mrs. Popovic on September 28, 2009].

87. At the beginning of the Member Complaint Panel meeting with Mr.

Schuman and Mr. Repace, the Chairwoman, Silvia Lewis, stated

“Secondhand smoke is damaging and it is nothing we have to discuss” and

proceeded to receive testimony from Mr. Schuman and Mr. Repace


21

concerning the health effects suffered by Mr. Schuman resulting from the

Popovics’ smoking. See Plaintiff Exhibit 41 [page 1 of minutes of GHI’s

Member Complaint Panel’s meeting with Mr. Schuman on September 28,

2009].

88. Panel member Ed James stated that “I am impressed by Mr.

Repace’s report.” See Plaintiff Exhibit 41 [page 2 of minutes of GHI’s

Member Complaint Panel’s meeting with Mr. Schuman dated September

28, 2009].

89. The Member Complaint Panel then met with Mrs. Popovic who

admitted that she recognized the dangers of secondhand smoke. See

Plaintiff Exhibit 42 [page 2 of minutes of GHI’s Member Complaint Panel’s

meeting with Mrs. Popovic dated September 28, 2009].

90. Chairwoman Silvia Lewis advised Mrs. Popovic that “[t]ests show

nicotine levels in his unit” and that Mr. Schuman’s “contention is that it is

bad for his health,” to which Mrs. Popovic responded, “We will do our best

to decrease smoking.” See Plaintiff Exhibit 42 [page 3 of minutes of GHI’s

Member Complaint Panel’s meeting with Mrs. Popovic dated September

28, 2009].

Member Complaint Panel’s October 8, 2009 Decision

91. On October 8, 2009, GHI President Suzette M. Agans, sent separate

letters to Mr. Schuman and Mrs. Popovic notifying them of the results of

the Member Complaint Panel’s decision. See Plaintiff Exhibit 35 [GHI’s


22

letter to Mr. Schuman dated October 8, 2009]; Plaintiff Exhibit 36 [GHI’s

letter to Mrs. Popovic dated October 8, 2009].

92. Ms. Agans’ letter to Mr. Schuman stated that based on the

documentation provided and “your position:”

it appears that the only remedy is for your neighbors to cease smoking. Because GHI is not a smokefree 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 a part of the solution. At this time, there appears to be nothing further that GHI can do to resolve the problem. [emphasis added] See Plaintiff Exhibit 35 [GHI’s letter to Mr. Schuman dated October 8, 2009].

93. Ms. Agans’ letter to Mrs. Popovic stated that:

The matter was discussed with the full Board during executive session on October 1st. During the Complaint Panel meeting, Mr. Schuman expressed concerns for his health and the effect of secondhand smoke, which have been documented in numerous studies and reports. It appears that smoke from your unit is contributing to his distress and health concerns. GHI is not a smokefree community. However the right to smoke is not protected by law and is considered a nuisance by some courts. Just like any activity which prevents one from experiencing a peaceful enjoyment of his/her home, unwanted smoke is considered a hazard in this situation. The Board feels that this problem can only be solved by those of you involved. We ask you to take whatever steps are necessary to allow both you and your neighbor to enjoy the peaceful use of your homes and yards. See Plaintiff Exhibit 36 [GHI’s letter to Mrs. Popovic dated October 8, 2009].


23

94. On November 30, 2009, Mr. Schuman wrote to GHI in order to alert

the cooperative that the Popovics “continue to smoke, and smoke

continues to enter my unit with adverse consequences to my health.

There has been no discernible change in their behavior since the

Complaint Panel on September 28th,” and also to seek “clarification as to

whether Ms. Agans’ letter dated October 8, 2009, is (a) the final action of

the Cooperative, or (b) whether a Formal Hearing is available.” See

Plaintiff Exhibit 38 [Mr. Schuman’s letter to GHI dated November 30,

2009].

95. Mr. Schuman testified that he sent the November 30, 2009 letter to

GHI, in order to “be super careful that [he] had done everything [he] could

possibly do with respect to GHI before filing a lawsuit [and] wanted to

make sure [he] had exhausted [his] possibilities with GHI.” Schuman

Testimony, 5-101.

96. On December 7, 2009, GHI’s General Manager, Gretchen Overdurff,

responded to Mr. Schuman’s November 30, 2009 letter by stating:

the Cooperative is not able to request that your neighbors not smoke. This matter was heard by the GHI Member Complaint Panel, which is the first level of the complaints process. A formal hearing is only possible after the second step is taken, that of an informal hearing. In the October 8th letter, the Board stated its position and firmly believes any resolution must come from those directly involved. The Board regrets there is nothing more it can do for you regarding this matter. [emphasis added] See Plaintiff Exhibit 39 [GHI’s letter to Mr. Schuman dated December 7, 2009].


24

97. Based on GHI’s December 7, 2009 letter, Mr. Schuman testified that

he did not believe that he had any further recourse within GHI’s dispute

system. Schuman Testimony, 5-102.

98. While GHI never advised Mr. Schuman to “take this issue to the

membership as a whole,” GHI’s President, Tokey Boswell, believes that

Mr. Schuman could make such a request. Boswell Testimony, 5-64; 5-67.

See also Lewis Testimony, 4-168 to 4-169.

99. Mr. Schuman testified that he did not believe that he could present

his dispute with the Popovics to GHI’s general membership because

“general membership meetings are for matters of general interest and

importance to the cooperative. This wasn’t of that nature. This was similar

to my neighbor [having] a vicious dog or playing loud music at midnight.

You wouldn’t take that to a general membership meeting.” Schuman

Testimony, 5-103.

Mr. Schuman’s Medical Damages

100. At trial, Mr. Schuman testified as to how the Popovics’ smoking

affected his health by stating that the health effects were “involuntary” and

that:

I found it very difficult to breathe. My heart was racing. My eyes were tearing up, sneezing, coughing, congested, coughing, you name it. 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. Schuman Testimony, 1-233.


25

101. Additionally, Mr. Schuman testified that:

Not to make a huge laundry list; I couldn’t sleep. I felt nauseous at times. I had headaches. It was just a terrible, terrible situation. Schuman Testimony, 1-234.

102. When asked how long after he smelled the smoke his health effects

occurred, Mr. Schuman testified:

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. Some of it’s right away when you walk in the home. In fact, I could smell the smoke walking up my pathway on the service side. You know, the 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 single time like clockwork. They varied, but it was in response to that condition. Schuman Testimony, 1-246 to 1-247.

103. Mr. Schuman believes that these health effects were directly related

to the Popovics’ smoking because he “didn’t have these issues before the

smoking problem started” and “[t]hey happened with a vengeance very

close in time to this smoke” and “never used to get these infections, upper

respiratory infections until the late-2000s. Winter of 2008, 2009, 2010, I

had very serious difficulties.” Schuman Testimony, 1-246.

104. Moreover, Mr. Schuman testified that “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.” Schuman Testimony, 1-248.


26

105. Mr. Schuman also testified that the health effects of smoking “started

before [his] renovations started.” Schuman Testimony, 1-250.

Mr. Schuman’s Testimony about Why He Likes Living in GHI

106. Mr. Schuman found GHI’s suggestion that he move out of his house

to be “offensive and humiliating” because:

It’s my house. I spent a lot of money to improve it. I love my house. I like where I live. I don’t want to move out. . . . 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 as I could. I took steps to help address the problem. This situation that I just sat there and absorbed it is ridiculous. I did the polite, neighborly thing. I went through the administrative procedures. The cooperative told me, ‘we can’t do anything. Go talk to your neighbor.’ [The] neighbor said, ‘I can’t do anything. Go talk to the co-op.’ I’m completely stuck.” Schuman Testimony, 1-234.

107. Mr. Schuman testified that the reason why he did not stay in a hotel

to avoid the Popovics’ smoke is that:

I didn’t have money for that. I’m still paying my monthly co-op fee and my mortgage. I’m not a wealthy guy. That’s my house. I wanted to fix the problem and stay in my house.” Schuman Testimony, 1-235.

108. Mr. Schuman’s monthly cooperative fee to GHI is about $530.00 per

month. Schuman Testimony, 2-89.

Mr. Schuman’s Efforts to Mitigate the Problem

109. Mr. Schuman testified that he tried to rid his home of the smoke by

“in the winter, run around, and open all the windows and try to let the


27

smoke pervade out, and in the summer, the reverse.” Schuman

Testimony, 1-247.

Mr. Schuman’s Litigation Costs

110. Mr. Schuman testified that he is not receiving any outside funding

from sources such as the American Cancer Society to fund his litigation,

but rather “drained [his] retirement account to pay for this.” Schuman

Testimony, 1-255.

111. Mr. Schuman further testified that his litigation is not related to a

“mission or big policy discussion” but rather “[i]t’s a problem I need

resolved to live in my house.” Schuman Testimony, 1-255.

Ways in which Popovics’ Smoking has Altered Mr. Schuman’s Living Conditions

112. Mr. Schuman testified that he does not have “full use of [his]

property since the “back porch and the backyard are part of the property”

and:

I can’t fully use my property the way I feel I would like to use it. Mr. Popovic is free to use his property the way he wants to; gets to sit on his patio; keep his windows open. I can’t keep my windows open on a nice day like it was yesterday. I would like to be able to sit on my patio; use my rocking chairs; enjoy my property. I would like to use my backyard. I would like to keep my windows open; have the fresh breeze blow through my house on nice days. I don’t want to have to run the air conditioner and pay for that. Schuman Testimony, 2-10. See also Schuman Testimony, 2-11 to 2-12.

113. The night of the first day of trial, Mr. Schuman was with his

dog in his backyard when Mr. Popovic came out of his house to


28

smoke on his patio, which forced Mr. Schuman to go inside and

close his windows. Schuman Testimony, 2-19.

Reduction in Value of Mr. Schuman’s Home

114. Mr. Schuman testified that he listed his house on the market for sale

for $259,000.00 since he has “no other options,” because he “can’t

continue to live like this” since Mr. Popovic is “not going to stop smoking”

and “GHI is not going to address the problem.” Schuman Testimony, 1-

280 to 1-282.

115. Mr. Schuman believes, however, that his home’s value is

significantly reduced from when he had his renovations performed in 2008

because it is not a good market for a home seller. Schuman Testimony, 1-

281. See also Schuman Testimony, 2-100 to 2-101.

116. Even at the listing price, Mr. Schuman has not received any offers

on his home. Schuman Testimony, 1-282 to 1-283.

Mr. Repace’s Background

117. Mr. Schuman’s expert on secondhand smoke, James L. Repace,

M.Sc., holds both Bachelor’s and Master’s degrees in Physics from the

Brooklyn Polytechnic Institute, and completed all the coursework for a

Ph.D. in physics at Catholic University, although he never wrote a thesis.

Repace Testimony, 2-185.

118. Mr. Repace’s work history includes working as a physicist for the

City of New York, where he calibrated x-ray machines, working for the


29

RCA David Sarnoff Research Laboratory in Princeton, New Jersey, where

he built scientific equipment and conducted research on television picture

tubes, working at the Naval Research Laboratory in Washington, DC for

eleven years, beginning in 1968, where he focused on measuring the half-

lives of radioactive elements, and working at the U.S. Environmental

Protection Agency in Washington, DC, beginning in 1979, where he

studied air polluting gases and how these gases cause cancer. Repace


119. It was at the U.S. Environmental Protection Agency in the early

1980s, that Mr. Repace began researching risk assessments for

secondhand smoke and lung cancer. Repace Testimony, 2-188 to 2-189.

120. Today, as a private secondhand smoke consultant, Mr. Repace

focuses on “exposure to secondhand smoke, the dosimetry of secondhand

smoke, and the risk assessment of secondhand smoke.” Repace

Testimony, 2-192.

121. Mr. Repace has published “about seventy-five papers, scientific

papers on secondhand smoke exposure, dose risk and control, and of

those a large number deal with the whole issue of exposure to secondhand

smoke.” Repace Testimony, 2-192.

122. Mr. Repace has also “published mathematical models which enable

[him] to predict the concentrations of secondhand smoke indoors and

outdoors,” published several papers concerning the “risks of secondhand


30

smoke, and the mortality from secondhand smoke from lung cancer and

heart disease” and published papers “that deal with the effectiveness of

ventilation systems on the control of secondhand smoke.” Repace


123. The 2006 Surgeon General’s Report on Secondhand Smoke cited

Mr. Repace’s work nineteen times. Repace Testimony, 2-191.

124. Mr. Schuman’s secondhand smoke expert, Mr. Repace, agreed that

Surgeon General’s Reports are the “gold standard” for reporting on specific

subject areas. Repace Testimony, 2-227.

125. Mr. Repace also testified that he is not aware of any published, peer

reviewed scientific studies that call into question any of the Surgeon

General’s findings on secondhand smoke. Repace Testimony, 2-227.

126. Mr. Repace has consulted for national governments on secondhand

smoke issues, including the United States, Australia, New Zealand,

Canada, Chile, Portugal, Ireland, England, Norway, the Netherlands and

Hong Kong. Repace Testimony, 2-241.

127. Mr. Repace has been invited by Congressional committees on four

occasions to testify on secondhand smoke related issues. Repace

Testimony, 3-35.

128. Mr. Repace is a member of the American Society of Heating,

Refrigerating and Air-Conditioning Engineers (“ASHRAE”). Repace

Testimony, 2-209.


31

How Secondhand Smoke Travels Through the Air

129. Mr. Repace testified as to how secondhand smoke travels through

the air:

It travels through the air in several different ways. Because it's hot as it relates -- generally much hotter than the air, the plume will rise up; because the gases and particles are heavier than air, after they cool, they will begin to subside, and this is in a completely still room, okay; however, most rooms; nearly all rooms do not have completely still air. There is always turbulence in the air caused by temperature differences, air currents, things like that, and so what you wind up with is a lot of micro plumes. . . . They generally travel quite quickly. Molecules, themselves, are traveling at a good proportion of the speed of sound because of the Brownian motion. They collide with other molecules, and so they won't travel with the speed of sound from one end of the room to the other, but, you know, within a very short number of minutes, if I lit up a cigarette here, it would go out; reach that door over there; so, it moves very fast, and the important thing is that the concentration in those micro plumes is extremely high. So you can have very localized whiffs of smoke that can be thousands of micrograms per cubic meter; whereas, the average in the room might only be a few hundred, so your perception – so even though it lasts for a very short time, the reaction of the body can be quite significant in terms of eye, nose and throat irritation. Repace Testimony, 2-227 to 2-229.

130. Mr. Repace testified as to how far secondhand smoke travels

through the air:

Indoor air, it will -- generally, in a few minutes it will permeate a space. If it's in a ventilated space, it will do a lot quicker than that. In outdoor air, it really depends on the wind velocity, which is the wind direction and wind speed. If you are downwind from a cigarette or group of cigarettes outdoors, either be in a line source or an area source, and you'll be exposed as long as the wind is blowing toward you. Repace Testimony, 2-229.


32

131. If there is no wind, Mr. Repace testified:

what happens is the gases from the smoke will rise up until they become air temperature, and you know, depends on how cool the air is on how long that takes, but generally, a very short period of time; then it will subside, and it will just kind of spread out like a mushroom in all directions unless there's some, you know, building structure which prevents it from migrating in one direction, and then it will just spread out horizontally in all directions; so, basically, if there's no wind at all, you can't -- you know that the smoke will go in all directions in which it is possible to go, generally -- not so much up, but generally horizontally, and it will simply migrate that way. Again, if the wind is blowing away from you, generally, you won't get any smoke or you might get a very little amount of smoke, depending on the turbulence in the air. If it's blowing toward you, then you are going to be exposed. Repace Testimony, 2-229 to 2-230.

Caulking and Sealing Walls Does Not Prevent Secondhand Smoke from Migrating Through Holes in the Walls

132. In order to mitigate the passage of secondhand smoke through

enclosed spaces, Mr. Repace testified that “[y]ou would have to basically

hermetically seal” the area, but it would not eliminate the secondhand

smoke since there are “just too many pathways, plumbing, electrical

connections. The holes, the gaps between the wall board and the floor

construction is not perfect. They are never really quite even. That’s why ”

we put molding around base boards. You don’t have a perfect seal.”

Repace Testimony, 2-231 to 2-234.


33

133. In general, there is no way to completely prevent secondhand

smoke from traveling throughout an enclosed space.” Repace Testimony,

2-234.

134. It would not have been technologically feasible for Mr. Gervasi to

install a plastic or mylar sheet between the Schuman and Popovic homes

because “[y]ou would have to remove all the wall board, and it would have

to be sealed around each joist and each top plate; as [there are] many

nails sticking around through all that,” and this ill-fated effort would cost

around a “few thousand bucks.” Gervasi Testimony, 1-90.

Dangers of Secondhand Smoke

135. Secondhand smoke causes elevated risks of lung cancer and heart

disease to those non-smokers who breathe in the secondhand smoke.


136. In fact, “cardiac abnormalities have been induced in experimental

subjects at relatively low levels of particles.” Repace Testimony, 2-236.

137. There are a “number of toxic chemicals” in secondhand smoke,

about “sixty-nine of those are carcinogens” and “some of them are

extremely irritating, such as formaldehyde, acetaldehyde [and] acrolein.”


138. Aside from the olfactory perception, which, for many non-smokers, is

unpleasant, there are objective reactions that the human body produces

when exposed to secondhand smoke, including “irritation of the senses,”


34

difficulty breathing, asthma induction and aggravation, eye irritation, nasal

irritation, throat irritation, and in people who suffer from respiratory disease

or have cardiovascular problems, it can produce other changes and

irritation in the lower respiratory system as well. Repace Testimony, 2-222

to 2-223; 2-238.

139. In fact, published scientific studies indicate that “all people report

that they typically report sensory irritation and difficulty in breathing.”


140. In addition, chronic exposure can cause respiratory symptoms, lung,

nasal, sinus and breast cancers, cardiovascular mortality and an elevated

risk of stroke. Repace Testimony, 3-25.

Mr. Repace’s Indoor Air Study at Mr. Schuman’s Home

141. Mr. Repace performed a nicotine monitoring study at Mr. Schuman’s

home in 2009. Repace Testimony, 2-243.

142. Researchers measure nicotine to determine levels of secondhand

smoke in an indoor environment “because it is unique to tobacco smoke.”


143. Researchers do not measure particles in general in order to

determine the levels of secondhand smoke “because there are other

sources of particles” and nicotine levels can be used to “calculate the

particle levels.” Repace Testimony, 3-27.


35

144. In order for Mr. Repace to perform this study, Mr. Schuman hung a

monitor in his kitchen for one month because that was where he could

smell the smoke. Repace Testimony, 2-247.

145. The reason Mr. Repace directed Mr. Schuman to hang the nicotine

monitor for one month was because the “longer you leave the monitor in

place, the lower the limit of detection is. If you left it in place for only a

week, you would have a much higher [limit of] detection than I get.”


146. Thus, the longer Mr. Repace’s monitor is exposed, the more

accurate the test results are. Repace Testimony, 2-249.

147. The limit of detection of Mr. Repace’s monitor is .005 micrograms,

which is a “[v]ery low number. It’s an extremely small amount of nicotine.”


148. The monitor that Mr. Repace used in this study is the preferred

monitor used in the health industry for measuring the presence of nicotine

from secondhand smoke. Repace Testimony, 2-250.

149. Mr. Repace’s measurements of the nicotine in Mr. Schuman’s home

based on the monitor’s results indicated that the nicotine level was .05

micrograms per cubic meter, which means that “we detected a presence of

secondhand smoke in the unit, and since I was also there, and I smelled it

myself, I had a subjective confirmation of what the objective number was,


36

and if you can smell it, typically, you know, you know that there’s

secondhand smoke in the unit.” Repace Testimony, 2-250 to 2-251.

150. The risk assessment model used by Mr. Repace to determine Mr.

Schuman’s risk of “chronic mortality” from exposure to the Popovics’

smoking shows that Mr. Schuman has “a significant risk” of developing

lung cancer and that his “average daily SHS-nicotine exposure produces

an estimated excess chronic mortality risk that exceeds by more than 2000

times the de minimis risk level used by U.S. Environmental Protection

Agency for hazardous air pollutants, and is seven times the level that

constitutes a de manifestis or obvious risk by Federal regulatory

standards.” Repace Testimony, 3-32 to 3-33, 3-48. See also Plaintiff

Exhibit 5 [page 15 of Mr. Repace’s August 24, 2010 report].

151. Mr. Repace’s risk assessment model is widely used by researchers

in assessing lung cancer risks from secondhand smoke. Repace


Mr. Repace’s Outdoor Air Study at Mr. Schuman’s Home

152. During the summer of 2011, Mr. Repace measured the secondhand

smoke infiltration inside Mr. Schuman’s home with the windows open in

Mr. Schuman’s living room, dining room and upstairs bedroom and Mr.

Popovic smoking on his patio. Repace Testimony, 2-243; 3-135.

153. Mr. Repace made these measurements with a $12,000.00 monitor

that measures “surface bound polycyclic aromatic hydrocarbons, which is


37

a fancy way of saying it measures the particles in the air that have tobacco

smoke or diesel exhaust, like tars on their surfaces.” Repace Testimony,

2-241.

154. Mr. Popovic began smoking on his patio at a time when Mr. Repace

was present at Mr. Schuman’s house, and Mr. Repace “smell[ed] the

secondhand smoke” and ran the monitor for about twenty minutes.


155. Mr. Repace testified that:

[w]e continuously smelled secondhand smoke. I found it was irritating. My eyes, my nose, and my throat were irritated from the levels” and “I smelled it in his dining room, in his living room, upstairs bedroom. And then after 20 minutes, Mr. Popovic stopped smoking and started watering his plants, and soon after that, you know, I discontinued the measurement, and I went home, and I downloaded the data into my computer, and I analyzed it, and then I wrote a report for Mr. Schuman on that. Repace Testimony, 2-244 to 2-245.

156. Mr. Repace’s measurement revealed that “there was a presence of

secondhand smoke from Mr. Popovic’s smoking in the yard.” Repace

Testimony, 2-251.

157. Mr. Repace testified that the method used to measure the

secondhand smoke infiltration inside Mr. Schuman’s home with the

windows open is the established method in the scientific community.


158. Mr. Repace testified that the distances inside Mr. Schuman’s home

to where Mr. Popovic was smoking on his patio was about 27 feet in Mr.


38

Schuman’s dining room and about 44 feet in Mr. Schuman’s living room

and “the carcinogen levels were doubled.” Repace Testimony, 2-255.

159. Mr. Repace testified that this test revealed that “during the 20 minute

smoking period, median carcinogenic polycyclic aromatic hydrocarbons

doubled over the 20 minute nonsmoking period” and thus, he was able to

conclude, “to a reasonable degree of scientific certainty, that outdoor

smoking by Mr. Popovic penetrated through the open windows of Mr.

Schuman’s home” and that “the smoke infiltrating into Mr. Schuman’s unit

is both irritating and carcinogenic.” Repace Testimony, 3-40.

160. The peak measurements of the carcinogenic polycyclic aromatic

hydrocarbons in this 20 minute smoking period were around ten to twelve

nanograms per cubic meter, which means that the measurements were

five to six times higher than the average median level of pollution. Repace

Testimony, 3-131.

161. Mr. Repace added that even if there were no wind while Mr. Popovic

is smoking on his patio, secondhand smoke would “definitely” still enter Mr.

Schuman’s open windows since the smoke would “flow out like a

mushroom.” Repace Testimony, 3-44.

162. Mr. Repace’s outdoor smoking test revealed that he was able to

detect secondhand smoke at a distance of about 44 feet. Repace

Testimony, 2-256.


39

163. Even if Mr. Schuman’s windows were closed while Mr. Popovic is

smoking on his patio, secondhand smoke would still enter Mr. Schuman’s

home since:

The windows, when they are closed, do not prevent outdoor air pollution from entering indoors. They will reduce the rate at which it flows, obviously, from outdoors to indoors, but, obviously, the gases and the fine particles that are in secondhand smoke can readily penetrate through the cracks around windows and doors, and in other words, there is a significant air exchange between outdoors and indoors, and whatever pollution is in the air will come indoors. And it has been well established by [the] EPA that outdoor air particles will infiltrate indoors with a penetration efficiency in this particle size range of close to one. That is almost a hundred percent. In other words, a gas will pass readily through into the interior, and you know, if it -- typically, air exchange rate for this kind of house is about three-quarters of air exchange an hour, and you know, every hour, three-quarters of the air in that house will be replaced by outdoor air, so while it would certainly reduce the flow from outside to indoor, it doesn't necessarily eliminate it. Repace Testimony, 3-59.

Use of HEPA Filters and Fans to Protect Nonsmokers from the Dangers of Secondhand Smoke

164. Mr. Repace testified that the use of fans or filtering devices may

reduce, but not eliminate the infiltration of secondhand smoke between the

Schuman and Popovic homes.” Repace Testimony, 3-8 to 3-9.

165. In fact, HEPA filters are “high efficiency particle filters” that “certainly

don’t remove gases” and since “there are a lot of irritating and carcinogenic

gases in tobacco smoke,” the HEPA filters “wouldn’t do anything for that at

all.” Repace Testimony, 3-56.


40

166. Additionally, the American Society of Heating, Refrigerating and Air-

Conditioning Engineers (“ASHRAE”) has found that “filtration, and

ventilation and special separation without physical separation will not

control levels of tobacco smoke.” Repace Testimony, 3-57.

167. In order to “achieve a significant reduction in air infiltration between

units, you basically have to evacuate the premises, gut them down to the

frame and reconstruct them; so, in other words, you basically total the

building” “because you can’t find every crack and crevice” and there are

“many, many small holes that you can’t see.” Repace Testimony, 3-9 to 3-

10.

1997 Martel Laboratory’s Carbon Monoxide Test of Popovic Home

168. In 1997, GHI hired Martel Laboratories to measure the amounts of

carbon monoxide in the Popovic home. Schuman Testimony, 2-33.

169. Notice was given to the Popovics before the testing was made and

the report did not reveal any carbon monoxide at all in the Popovic home.


170. Mr. Repace testified that a carbon monoxide test would not be an

established test to determine the presence of secondhand smoke because

“[c]igarettes are very weak emitters of carbon monoxide” and “the only time

you actually really find very elevated levels of carbon monoxide from

smoking is in places like cigar bars.” Repace Testimony, 3-7 to 3-8.


41

171. Moreover, if the Popovics were not home when the testing was

performed, there would be an “essentially zero” measurement with regard

to carbon monoxide because the carbon monoxide would “decay back

down to background.” Repace Testimony, 3-8.

The Safe Place for Mr. Popovic to Smoke is in the Middle of the Common Area Behind the Schuman and Repace Homes

172. Mr. Repace was asked, “Assuming that the Court has jurisdiction

over Mr. Popovic in his house, in his yard, and in that common area, which

presumably GHI owns, at what distance do you believe Mr. Popovic would

no longer affect Mr. Schuman in the use of his house or yard?,” to which

Mr. Repace answered:

I think if Mr. Popovic went in that common area on the other, on the far side of that sidewalk, somewhere in that area where it would be comfortable or convenient for him, that would be a good place for him to smoke. Repace Testimony, 3-133.

Evidence of Mr. Schuman’s Medical Damages from Exposure to Secondhand Smoke

173. Dr. Alfred Munzer testified as an expert on Mr. Schuman’s behalf in

support of Mr. Schuman’s claims that he suffered medical damages from

exposure to the Popovics’ secondhand smoke. Munzer Testimony, 3-137.

174. Dr. Munzer, the former President of the American Lung Association,

is the Director of Pulmonary Medicine at Washington Adventist Hospital

and has practiced medicine at that hospital since 1974. Munzer



42

175. Dr. Munzer has also testified “dozens of times” before governmental

bodies, including Congressional committees and the National Academy of

Sciences, on topics dealing with lung health. Munzer Testimony, 3-139 to

3-140.

176. Over his career, Dr. Munzer treated, on average, fifty to sixty

patients a week with a “variety of complaints originating in the respiratory

tract: cough, shortness of breath, wheezing.” Munzer Testimony, 3-140.

177. In addition, Dr. Munzer testified that “I have treated - - I treat patients

with chronic bronchitis, asthma, emphysema, all related to smoking, as

well as many patients, unfortunately, with lung cancer, and certainly, I have

also seen a lot of patients with heart problems.” Munzer Testimony, 3-140

to 3-141.

178. While most of Dr. Munzer’s patients are smokers or former smokers,

some of his patients are non-smokers who have family members that are

smokers. Munzer Testimony, 3-140 to 3-141.

179. Dr. Munzer has education, training and experience in the health

effects of smoking, in the treatment of smoking-related illnesses and

diseases, in the health effects of secondhand smoke and the in treatment

of third parties who are affected by secondhand smoke. Munzer


180. Dr. Munzer believes that the Surgeon General’s Reports on

secondhand smoke are the “gold standard” for discussions on this topic


43

and is not aware of any studies that contradict these findings. Munzer


181. Dr. Munzer testified that:

secondhand smoke is composed of many different chemicals, some of which are highly toxic. Some of them cause cancer, and some of them are just irritants, for example, to the respiratory tract; so, there are different levels of hazardous effect. The immediate effect that most people sense would be a bad smell, annoyance in other words; then people complain also of burning, eyes burning, nose, runny nose, and then this goes on to people who develop -- who also complain of nausea, headache, a whole constellation of symptoms. In addition to those immediate or short term effects, in addition to that, there are long term effects of the secondhand smoke, and they are effects on the respiratory system and on the circulatory system. Those have been well documented. They include lung cancer. Increased incidence of heart attacks also in people who are exposed to secondhand smoke, and the evidence for that comes from a variety of sources, epidemiologic studies, which we have talked about a lot of it also; studies of the biology, really, of these mechanisms of the action of cigarette smoke on various organs. Munzer Testimony, 3-145 to 3-146.

182. Dr. Munzer testified that from being in the courtroom when Mr.

Schuman testified in this case, he believed that “he has had sneezing, he

has had headaches, he has had nausea and he has difficulty sleeping.”

Munzer Testimony, 3-147.

183. Dr. Munzer believed that “[t]hese are the kind of symptoms that we

would typically hear from a person exposed to secondhand smoke” and

that “[t]hese are frequent complaints” for those exposed to secondhand

smoke. Munzer Testimony, 3-147 to 3-148.


44

184. Dr. Munzer described what physically happens to the human body

when the person breathes in secondhand smoke:

Secondhand smoke, like any other smoke, like direct smoking, is rapidly taken up; inhaled. It is then taken up in the lungs and rapidly, as some of the substances are transferred at the alveolar level to the bloodstream, and then to distant parts of the body, and that’s how we explain some of the more chronic effects of cigarette smoking, for example, the abduction of lung cancer in organs that are as distant as the bladder . . . [and] generally, [the body] defends itself, if you will, against the offense, against the - - that’s the manifestation that we call sneezing, the red eyes, the burning of the eyes. These are all manifestations that the body is being attacked by something it doesn’t like. Munzer Testimony, 3-149.

185. While the human body’s “immediate reaction” to exposure to

secondhand smoke may be similar to the response to other allergens,

such as tree pollen, “what happens in distant organs is very different”

because the fact that a person may have hay fever “does not lead to the

absorption of carcinogens.” Munzer Testimony, 3-149 to 3-150.

186. Dr. Munzer testified that the body sneezes when exposed to an

allergen such as secondhand smoke or pollen because “[i]t’s basically an

immune reaction” and “[t]he body is trying to give a message that this is a

foreign substance” and sneezing is “one way of ridding the body, basically,

of the substance.” Munzer Testimony, 3-150.

187. Of course, the long term risks of exposure to secondhand smoke are

“lung cancer, heart disease, cardiac symptoms.” Munzer Testimony, 3-

151.


45

188. Dr. Munzer believes that Mr. Schuman has “been harmed by

exposure to secondhand smoke” based on “hearing him describe his

symptoms in this greater detail when he was on the stand,” and this

“reinforced my impression, my conclusion that he had suffered effects from

inhalation of secondhand smoke.” Munzer Testimony, 3-152 to 3-153.

189. Additionally, after hearing Ms. Ipolito testify in open court, Dr.

Munzer formed the belief that she too “had been exposed to secondhand

smoke, and it had caused exacerbations of her asthma.” Munzer

Testimony, 3-153.

190. Dr. Munzer further testified that “the things [Mr. Schuman] is

complaining about are actual complaints and are actual manifestations of

exposure to secondhand smoke. Now these may be transient effects, may

not be terribly severe, but they have evidence of exposure, of some harm

to him as a result of exposure to secondhand smoke. In addition to that,

certainly it is very possible that the exposure to secondhand smoke may

eventually lead to a lung cancer or some other form of cancer. We don’t

know what is happening in his body as a result of exposure to secondhand

smoke.” Munzer Testimony, 3-156.

191. Dr. Munzer also answered the question “Do you believe that Mr.

Schuman has suffered an unfavorable health condition as a result of

exposure to secondhand smoke?” by stating:


46

I believe he has. I think the symptoms that he described are a harmful effect of exposure to secondhand smoke. Certainly, his complaint of burning of the eyes, his complaint of tightness in his chest, wheezing, coughing, headache, all of those are adverse effects and may be transient, might not be terribly important in the long run, but they are definite adverse effects indicating that he is being exposed to secondhand smoke, and secondhand smoke, furthermore, is getting into his body and may place him at risk of developing some further problems later on. Munzer Testimony, 3-158 to 3-159.

192. Additionally, Dr. Munzer was asked the question, “Hearing Mr.

Schuman’s testimony in this case today, do you believe that he has

suffered a medical injury as a result of his exposure to the secondhand

smoke?,” to which he responded, “I guess it depends a little bit on the

definition. Certainly, in the sense that the symptoms that he has

developed, the fact that they are recurrent symptoms, recurrent difficulty

sleeping, the recurrent headaches, all of those are things, I think, taken

together, do show that he has sustained an injury.” Munzer Testimony, 3-

159 to 3-160.

193. Dr. Munzer was also asked the question, “Wouldn’t even one

instance where he has had that congestion, that eye irritation, wouldn’t

that, in your opinion, be a medical injury as well?,” to which the Court

added, “Well, would those things be a medical injury?,” to which Dr.

Munzer answered, “They would be a medical event. I think they might;

depends a little bit on the definition of the word ‘injury,’ but I think a single


47

event would be a single injury, albeit, probably minor.” Munzer Testimony,

3-160.

194. Dr. Munzer testified that Mr. Schuman’s medical record provides

evidence of exposure to secondhand smoke, specifically, the “medical

record does reveal the episodes of sinusitis, of sinus infections, and

certainly they may not be caused directly or only by secondhand smoke,

but it certainly, again, is the kind of condition that could be aggravated by

exposure to secondhand smoke” because “[i]n the absence of any other

risk factors in a person who is otherwise healthy, where the only real risk

factor is exposure to secondhand smoke, if the exposure, you know, is

severe enough, certainly this could be a cause.” Munzer Testimony, 3-

166; 3-171.

195. Dr. Munzer believes that “if I were [Mr. Schuman’s] treating

physician, I would certainly advise him to stay away from secondhand

smoke.” Munzer Testimony, 3-159.

Testimony of Defense Expert, Dr. Ronald E. Gots 196. Dr. Gots, who testified as GHI’s medical expert, has not actively

treated patients since 1981. Gots Testimony, 4-45.

197. Dr. Gots has never published any peer-reviewed studies on

secondhand smoke, published any other paper on secondhand smoke or

attended any lecture or class on secondhand smoke. Gots Testimony, 4-

47 to 4-48.


48

198. Dr. Gots’ work has never been cited in any studies on secondhand

smoke. Gots Testimony, 4-48.

199. Dr. Gots has never visited the Popovic home. Gots Testimony, 4-49.

200. Dr. Gots has never taken any measurements of the presence or lack

of secondhand smoke at any of the homes in question. Gots Testimony,

4-49.

201. As recently as when Dr. Gots was deposed in another case in July

2011, he had not read the Surgeon General’s 2010 Report on secondhand

smoke. Gots Testimony, 4-49.

202. Dr. Gots admitted that secondhand smoke could be dangerous and

that Mr. Schuman could have suffered damages from exposure to the

Popovics’ secondhand smoke as shown in the following exchange:

Q: Is secondhand smoke dangerous? A: Sure, it can be. Depends on the amount and depends on the amount of exposure. Q: So you are not contending there’s no risk from exposure to secondhand smoke? A: No, absolutely not. Q: Are you contending that Mr. Schuman did not experience the symptoms? A: No, I expect that if he said he had symptoms, then he had symptoms. Now, I think some of his causal attributions may or may not be accurate. He said he was symptomatic. He may have been symptomatic. Gots Testimony, 4-73.


49

203. Despite the Surgeon General’s finding that “there is no safe level of

secondhand smoke,” Dr. Gots believes, without support from published

studies, that he “believes there is,” but cannot identify what he thinks that

level may be. Gots Testimony, 4-103.

204. In fact, Dr. Gots admitted that “there’s not a study that would lead to

[his] conclusion” that there is a safe level of secondhand smoke. Gots


205. Dr. Gots admitted that he agrees with the Surgeon General’s

findings that there are “multiple mechanisms with which secondhand

smoke exposure causes injury to the respiratory tract.” Gots Testimony, 4-

105.

206. Dr. Gots admitted that HVAC systems cannot eliminate exposure to

secondhand smoke. Gots Testimony, 4-105.

207. Dr. Gots admitted that models can be used to estimate

concentrations of secondhand smoke. Gots Testimony, 4-105.

208. Dr. Gots admitted that “cigarette smoke bothers people.” Gots

Testimony, 4-114.

209. In fact, Dr. Gots was asked, “Do you believe that Mr. Schuman’s

complaints about the secondhand smoke from Mr. Popovic being

bothersome to him has a basis in scientific fact?,” to which he responded,

“I have no quarrel with the proposition that people are disturbed by

secondhand smoke, and that you can smell it at very low levels. If he says


50

it bothers him, I’m not arguing with him with that proposition at all,” which

led to the following question, “So you agree that the secondhand smoke

could be annoying to Mr. Schuman, correct?,” to which Dr. Gots

responded, “I agree it could be annoying.” Gots Testimony, 4-114 to 4-

115.

210. On page 77 of his book, “Chemical Sensitivities,” Dr. Gots stated

“Conference rooms and offices were often filled with cigarette, even cigar

smoke, hence, the expression, smoke-filled rooms. What could be more

contaminating than the hundreds of irritating chemicals emitted by tobacco

smoke?” Gots Testimony, 4-115 to 4-116.

211. While Dr. Gots believes that it would not be unsafe for a person to

live next-door to a smoker, he nevertheless admitted that “[i]t may be

unpleasant.” Gots Testimony, 4-117.

212. Dr. Gots admitted that he is not aware of any studies that have

questioned Mr. Repace’s methodology of measuring secondhand smoke

and determining the risks from secondhand smoke because “[n]o one has

published a study that has questioned anything about secondhand smoke

issues in 20 years.” Gots Testimony, 4-119.

213. Dr. Gots seems to concede that Mr. Schuman has a two in ten

thousand chance of developing lung cancer from exposure to the

Popovics’ cigarette smoke, but believes that “those two are theoretical

people. They are not real people.” Gots Testimony, 4-120.


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214. Dr. Gots admitted being paid at least $30,000.00 by GHI for the time

he spent working on this case. Gots Testimony, 4-122 to 4-123.

215. Moreover, Dr. Gots admitted that he has only testified on behalf of

one plaintiff in any case in the last five years, despite testifying twenty-five

or thirty times for defendants during this time period. Gots Testimony, 4-

123 to 4-124.

216. Dr. Gots agreed with the findings of the Surgeon General that “the

harmful effects of tobacco smoke don’t end with the users of tobacco” by

admitting that “people exposed to secondhand smoke can have harmful

effects.” Gots Testimony, 4-148.

217. Ultimately, when confronted with the Surgeon General’s finding that

“there is no safe level of exposure to secondhand smoke,” Dr. Gots

admitted that “I’m not disagreeing with what they are saying in the context

of what they are saying in the context of what they are saying as a matter

of public policy. I agree with that statement.” Gots Testimony, 4-148.

Testimony of GHI’s Corporate Designee, Gretchen Overdurff

218. At trial during questioning of GHI’s corporate designee, Gretchen

Overdurff, the Court asked Ms. Overdurff, “Has GHI taken a position, one

way or the other, on whether or not secondhand smoke is harmful to third

persons who breathe in smoke?” to which Ms. Overdurff responded, “I

believe they would say, just as I said before, that if you have enough or it,

it could be.” Overdurff Testimony, 2-133.


52

219. During Ms. Overdurff’s testimony, Mr. Schuman’s counsel read the

following portion of GHI Member Complaint Panel member Diana

McFadden’s deposition transcript into the record:

Q: Did the Member Complaint Panel take it as a given that secondhand smoke was present in Schuman’s unit? A: Yes. Uh-huh. Overdurff Testimony, 2-138.


following portion of GHI Member Complaint Panel member Diana

McFadden’s deposition transcript into the record:

Q: And the Board took it as a given that secondhand smoke is dangerous? A: Yes. Overdurff Testimony, 2-139.

221. Mr. Schuman’s counsel asked Ms. Overdurff, “You admit, don’t you,

that secondhand smoke from the Popovics’ unit migrated into Mr.

Schuman’s unit through the common walls, [don’t] you?” to which Ms.

Overdurff responded, “Yes.” Overdurff Testimony, 2-139.

222. Mr. Schuman’s counsel asked Ms. Overdurff, “You admit, don’t you,

that any sealing efforts that GHI or the parties could undertake with regard

to the walls between the Schuman and Popovic units would not prevent

smoke from coming into an open window, would it?,” to which Ms.

Overdurff responded, “I would agree it would not prevent it.” Overdurff

Testimony, 2-140.


53


following portion of the her deposition transcript (as GHI’s corporate

designee) into the record:

Q: I direct your attention to page ninety-two of the Surgeon General’s 2006 Report. Specifically, the implication section and the sentence about seven or eight lines down that says ‘Current HVAC systems cannot fully control exposures to secondhand smoke unless a complete smoking ban is enforced; furthermore, unless carefully controlled HVAC operations can distribute air that has been contaminated with secondhand smoke throughout a building.’ Do you agree or disagree with this passage? A: I agree. Q: Are you aware of any facts or opinions contrary to this passage? A: No. Overdurff Testimony, 2-142 to 2-143. [objections and discussions omitted].


following portion of the her deposition transcript (as GHI’s corporate

designee) into the record:

Q: Do you agree or disagree with the statement in paragraph three [of Mr. Repace’s July 2009 report] that Mr. Schuman’s average daily secondhand smoke – nicotine exposure produces an estimated excess chronic mortality risk that exceeds by 910 times the de minimis risk used by the United States Environmental Protection Agency for hazardous air pollutants, 910 times the federal de minimis risk level and is triple the level that constitutes a de manifestis or obvious risk by Federal regulatory standards. This is quite a significant risk. Do you agree or disagree with this finding? . . . A: If that is what he has found.


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. . . Q: Are you aware of any facts or opinions that are contrary to this passage? A: No. Overdurff Testimony, 2-145 to 2-146. [objections and discussions omitted].

225. Ms. Overdurff admitted that GHI has the power to discipline

members who engage in objectionable conduct under the terms of GHI’s

Member Handbook, such as, if members allowed their grass to grow too

high or played their music too loud. Overdurff Testimony, 2-147 to 2-148.

226. In fact, Ms. Overdurff admitted that noise limits are not even

addressed in GHI’s Member Handbook. Overdurff Testimony, 2-150.

227. Ms. Overdurff admitted that GHI banned smoking in its

administrative offices because it was a “smell issue that was offensive to

people.” Overdurff Testimony, 2-150 to 2-151.

228. Ms. Overdurff also agreed that secondhand smoke is “irritating and

malodorous.” Overdurff Testimony, 2-151.

229. Ms. Overdurff admitted that “these homes were built at a time, unlike

modern-day construction. There are lots of openings. They don’t have the

insulation, and this is the fact that exists, and people are made aware at

the time that they purchase that these homes are older; that sound, smells,

scents will pass between units.” Overdurff Testimony, 2-153.


55

230. Ms. Overdurff also conceded that nothing that Mr. Schuman’s

contractor, Mr. Gervasi, did during Mr. Schuman’s renovations could have

prevented secondhand smoke from traveling from the Popovics’ patio into

Mr. Schuman’s home through open windows. Overdurff Testimony, 2-157.

231. Ms. Overdurff admitted that non-smokers are placed at increased

risk for developing diseases as a result of the exposures to secondhand

smoke. Overdurff Testimony, 2-158.

232. Ms. Overdurff agreed with the statement that the right of smokers to

smoke ends when their behavior affects the health and well-being of

others. Overdurff Testimony, 2-161.

233. Ms. Overdurff admitted that secondhand smoke in Mr. Schuman’s

home is “considered a hazard.” Overdurff Testimony, 2-165.

Testimony of GHI Member Complaint Panel Chair, Silvia Lewis 234. Silvia Lewis was the chairperson of GHI’s Member Complaint Panel

involved in the Schuman/Popovic dispute in 2009. Lewis Testimony, 4-

159.

235. Ms. Lewis stated that the Member Complaint Panel “had no reason

not to believe” Mr. Schuman when he claimed that secondhand smoke

was entering his home. Lewis Testimony, 4-160.

236. Ms. Lewis also stated that the Member Complaint Panel “agreed

[that] secondhand smoke could be dangerous.” Lewis Testimony, 4-160.


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237. Nevertheless, Ms. Lewis believed that the Member Complaint Panel

“could not lay down the law for somebody or a standard for one family that

we were not willing to lay down for the whole community.” Lewis

Testimony, 4-164.

238. Ms. Lewis admitted that the Member Complaint Panel did not ever

ask the Popovics if they would abide by an order to stop smoking in their

home or patio “because that is not an option that the Board had. The

Board did not think it had the option to stop them from smoking, so why

would we have asked that question of them?” Lewis Testimony, 4-202.

239. Ms. Lewis also believed that if the Member Complaint Panel had

tried to force the Popovics to stop smoking and they refused that the

Popovics would have “had a right to appeal to the membership,” but “the

possibility of the membership upholding us introducing a nonsmoking

requirement for one household, I don’t think that would happen.” Lewis

Testimony, 4-164.

240. Ms. Lewis stated that the Member Complaint Panel “did not see the

purpose” of escalating Mr. Schuman’s complaint to an informal hearing

before the Board because “if you go to an informal hearing,” and “[i]f you

don’t see that the termination of membership is possible” then the Board

will not proceed to an informal hearing. Lewis Testimony, 4-183.


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241. Ms. Lewis conceded that the Member Complaint Panel “took it as a

given that secondhand smoke was damaging” to Mr. Schuman. Lewis

Testimony, 4-178.

242. Ms. Lewis further conceded that the Member Complaint Panel was

“not there to discuss whether or not secondhand smoke was damaging.”

Lewis Testimony, 4-178.

243. Even though Mr. Schuman provided the Member Complaint Panel

with a copy of Mr. Repace’s report concerning the migration of

secondhand smoke into Mr. Schuman’s home, Ms. Lewis admits that she

“did not study it.” Lewis Testimony, 4-179.

244. Ms. Lewis admitted that the Member Complaint Panel was “not there

to discuss the pros and cons of secondhand smoke. That was not what

we were there for. We were there to try to get this problem between two

neighbors taken care of.” Lewis Testimony, 4-180 to 4-181.

245. When asked if the Popovics presented any evidence to the Member

Complaint Panel that controverted Mr. Repace’s testimony on the dangers

to Mr. Schuman from the Popovics’ secondhand smoke, Ms. Lewis stated,

“[t]hat was not what we were there to discuss,” which led to the follow-up

question, “Why is it that the Board wasn’t there to discuss whether Mr.

Schuman was suffering damage or an injury from Mr. Popovic’s and Mrs.

Popovic’s smoking?,” to which Ms. Lewis responded, “We are not

physicians. We are not scientists. We are there to try - - to try to alleviate


58

the problem between two members. That’s what the Member Complaint

Panel is for.” Lewis Testimony, 4-182.

246. Ms. Lewis testified that the Board took the position after it refused to

order the Popovics from smoking that “[i]t’s between [Mr. Schuman] and

[the Popovics] to come to some conclusion of this problem.” Lewis

Testimony, 4-205.

Testimony of GHI President, Tokey Boswell 247. Tokey Boswell is GHI’s current President and was on GHI’s Board of

Directors at the time of the Schuman/Popovic dispute in 2009. Boswell

Testimony, 5-8.

248. Mr. Boswell admits that the Board “did not spend a lot of time talking

about whether a nuisance was present or not” when discussing the

Schuman/Popovic matter in 2009 since “it wasn’t the most pressing” issue.

Boswell Testimony, 5-15.

249. Mr. Boswell was asked “So you agree that the health effects of

secondhand smoke are documented?,” to which he responded, “Yes,

absolutely.” Boswell Testimony, 5-60.

250. Mr. Boswell referred to GHI’s “nuisance clause” as “high minded,

almost visionary” since “[a]lmost every single member in the co-op is going

to violate that provision at some point in time during their tenure.” Boswell



59

251. Mr. Boswell testified that the Board assumed that “secondhand

smoke can be harmful to people” because “[t]hat’s something that is widely

understood” and “was not a shock.” Boswell Testimony, 5-27.

252. Mr. Boswell also testified that it was “not terribly a surprise” for the

Board to learn that “secondhand smoke is entering Mr. Schuman’s unit”

because “[a]nybody who lives in GHI housing knows that sound and smell

travel through the walls. The part of living in GHI, is learning how to deal

with those.” Boswell Testimony, 5-27.

253. Mr. Boswell also admitted that “any member who has lived next to a

smoker would tell you that the odor of secondhand smoke comes in, and

that’s just true.” Boswell Testimony, 5-27 to 5-28.

254. Mr. Boswell admitted that neither the Popovics nor GHI presented

any evidence to the Board contradicting Mr. Repace’s finding that HEPA

filters would not work to remove the carcinogens in secondhand smoke,

but nevertheless, the Board found that HEPA filters might be a solution for

Mr. Schuman based on “[the Board members’] own personal experience.”

Boswell Testimony, 5-28 to 5-29.

255. Mr. Boswell believed that “direct conversation and continued

conversation with Mr. and Mrs. Popovic was probably in [Mr. Schuman’s]

best interest” since “discussion among members is how GHI works.”



60

256. While Mr. Boswell admitted that “[i]t did seem that [Mr. Schuman and

the Popovics] were stuck [in their positions],” which led to the follow-up

question, “How would any more talk help the problem?,” to which Mr.

Boswell responded, “It’s my perspective that’s one of the best ways, to talk

to help the problem. It seemed that they were unwilling to consider each

others’ viewpoints in direct conversation, and continuing to understand a

little bit better why the other person is feeling this and experiencing this is

probably the best way for people to learn and to change their opinions over

time.” Boswell Testimony, 5-32.

257. Mr. Boswell believed that “it seems that Mr. and Mrs. Popovic

wanted to make sure what their responsibilities were and to behave

properly.” Boswell Testimony, 5-36.

258. Mr. Boswell was asked, “So when the Board was deliberating on

what to do, the subject of whether the Popovics would abide by a rule

issued by the Member Complaint Panel or the Board was not even

discussed, was it?,” to which he responded, “I think that that’s true. The

issue was really if we were willing to move towards an informal hearing; if

we were going to be willing to move towards an informal hearing to talk

about termination of membership, that’s when we would issue

contingencies or constraints; that’s when we would say, you must do this

or else we’ll move towards termination of membership. Because we


61

weren’t willing to move in that direction, we didn’t consider what those

particular constraints could be.” Boswell Testimony, 5-37.

259. Mr. Boswell was asked, Did GHI “ever go to the Popovics and say,

‘Look, Popovics, if you start, if you smoke in the unit or on your patio, you

could be infringing on Schuman’s rights; so therefore, if we issue an order

that says you can’t smoke in your unit or on your patio, will you abide by

that restriction?,’” to which he responded, “Again, I don’t think that we

discussed that at length because there is no ‘or else’ in that sentence.”


260. While Mr. Boswell testified that the Board “didn’t believe that the

membership would enforce a decision to ban smoking in the unit or on the

patio,” he admitted that the Board never gave the membership the option

of enforcing such a decision, because “[w]e, as the Board, as

representatives of the whole membership, made a decision based on our

discretion and our judgment that we felt was appropriate.” Boswell

Testimony, 5-40.

261. Mr. Boswell admitted that unlike a decision terminating the Popovics’

membership for violation of GHI’s “nuisance clause” where the Popovics

had a right to appeal that decision to the full GHI membership, Mr.

Schuman had no right to appeal the Member Complaint Panel’s decision

not to take action with regard to the Popovics’ smoking. Boswell



62

262. When asked if he knew “if anyone from GHI investigated the claim

that the seals caused [Mr. Schuman’s] problem?,” Mr. Boswell answered,

“I don’t think that we did. When we were talking at the Board meeting, we

discussed what we could do further. We could look a little further into Mr.

Repace’s report, but that would require us to be specialists in science,

science and secondhand smoke. We could ask Mr. Schuman for his

medical records, but that would require us to be experts in the medical

field. We could require or ask Mr. Schuman to present evidence that he

had properly sealed the unit, but that would require us to look at

construction. He also just sealed up the unit after – just finished

renovations with the unit after a lot of work; so, we didn’t think it was

reasonable to ask him to tear down walls and review those things. We did

not - - we didn’t look at any of those things in detail. Boswell Testimony, 5-

49 to 5-50.

263. Mr. Boswell agreed that GHI approved and inspected the work

performed by Mr. Gervasi during Mr. Schuman’s renovations. Boswell


264. Mr. Boswell stated that “the sealing between the units would

probably not affect” “the patio to open window transfer.” Boswell

Testimony, 5-51.

265. Mr. Boswell also stated that “the Member Complaint Panel felt that

[the Schuman/Popovic problem] was likely to be an issue that was


63

unresolved for quite some time” since the Popovics “indicated that they

were unwilling to stop smoking.” Boswell Testimony, 5-55.

266. When asked what the Board expected Mr. Schuman to do,

considering that the Board failed to take action to prevent the Popovics

from smoking, Mr. Boswell stated, “we hope[d] that the members will

consider the problem more fully and be willing to be part of the solution”

even though the parties were “pretty well entrenched on both sides.”


267. Mr. Boswell further testified that “[i]n GHI, there are times when

members cannot resolve the issue between themselves, and it is not an

issue that is handled by the Board, by the cooperative as a whole, [it is]

simply an issue between members. If they cannot resolve it, it’s

sometimes best for one of the members to move out.” Boswell Testimony,

5-63.

268. Mr. Boswell admitted that he has does not like secondhand smoke

and has “closed [his] windows and doors when one of [his] neighbors

smokes,” and does so “because that improves [his] personal quality of life.”

Boswell Testimony, 5-76.

Darko Popovic’s Testimony

269. Mr. Popovic testified that outside of the dispute with Mr. Schuman

over smoking, the parties have never had a problem with each other and

are cordial to each other. Popovic Testimony, 5-116 to 5-117.


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270. Mr. Popovic admitted that he and his wife “have never broken any

rule in [their] life,” “have followed every rule in Greenbelt,” and “didn’t break

any law.” Popovic Testimony, 5-114.

271. Mr. Popovic informed that Court that his wife, Svetlana Popovic, has

a tumor and “can’t make more than five steps without [her] walker” and has

completely stopped smoking. Popovic Testimony, 5-113; 5-121 to 5-122.

272. Mr. Popovic admitted that when he was smoking inside his home,

secondhand smoke was migrating into Mr. Schuman’s home. Popovic

Testimony, 5-121.

273. The Court asked Mr. Popovic, “My question is similar to the prior

temporary restraining order. Is it your position today that you would

consent to smoking only outside?,” to which Mr. Popovic responded,

“Yeah, of course. That’s what I am doing now.” Popovic Testimony, 5-

116.

274. Mr. Popovic admitted that he currently smokes on his patio. Popovic

Testimony, 5-122.

275. Mr. Popovic admitted that secondhand smoke enters Mr. Schuman’s

home when Mr. Popovic smokes outside on his patio and agrees that the

“scent of secondhand is coming into [Mr. Schuman’s] unit.” Popovic

Testimony, 5-120.


65

276. Despite his agreement to stop smoking inside his home, Mr. Popovic

refused to agree to the entry of an order prohibiting him from smoking on

his patio. Popovic Testimony, 5-121.

277. Mr. Popovic was asked “would [it] be an imposition on you, for ten to

twelve minutes while you are smoking, to simply walk 75 feet into the

common area, smoke your cigarettes and then come back?,” to which he

stated, “It would be an imposition because I would have to carry my chair.

I have to carry a glass with a drink, for example, I’m drinking at that

moment, [a] pack of cigarettes, and [a] lighter and whatever.” Popovic

Testimony, 5-123.

278. Mr. Popovic was then asked, “Do you think it’s an imposition for Mr.

Schuman to have to breathe your secondhand smoke?,” to which he

responded, “He doesn’t have to breathe,” which led to the following

question, “What can he do to avoid breathing your secondhand smoke?,”

to which he responded, “He can close the window for that ten minutes. It

is much easier than to walk 75 feet.” Popovic Testimony, 5-123.

279. Mr. Popovic was asked, “Do you agree that secondhand smoke is

dangerous to third-parties that breathe in the secondhand smoke?,” to

which he responded, “Yes. But at the same time, I think that the whole

thing is overblown,” which led to the follow-up question, “Do you believe

that secondhand smoke is dangerous to Mr. Schuman?,” to which he

responded, “Yes, I suppose so.” Popovic Testimony, 5-126 to 5-127.


66

280. Mr. Popovic admitted that cigarette smoke is annoying to Mr.

Schuman. Popovic Testimony, 5-124.

281. Mr. Popovic admitted that secondhand smoke causes cancer.

Popovic Testimony, 5-149.

282. Mr. Popovic admitted that “along with the scent of smoke comes

carcinogens." Popovic Testimony, 5-150.

283. Mr. Popovic was asked, “If Mr. Schuman were having a dinner party

outside on his patio, would you still go out on your patio and smoke?,” to

which he responded, “One or two cigarettes probably, maybe.” Popovic

Testimony, 5-125.

GHI’s Defense that Mr. Schuman Could Have “Taken his Grievance to the Membership”

284. Ms. Lewis indicated that Mr. Schuman had the right to “go to the

whole membership” or even run for a position on the Board himself if he

believed that the Member Complaint Panel or Board was incorrect in failing

to order the Popovics to stop smoking. Lewis Testimony, 4-168, 4-170.

285. Ms. Overdurff admitted that GHI is not aware of any situation where

one GHI member took a personal grievance against a fellow GHI member

to the entire membership. Overdurff Testimony, 6-19.

286. Ms. Overdurff also admitted that GHI is not aware of any situation

where GHI itself took a grievance against a GHI member to the entire

membership. Overdurff Testimony, 6-19; 6-22.


67

287. Ms. Overdurff admitted that where a member does not pay his or her

membership dues, GHI does not take the GHI member to the entire

membership in order to collect the dues. Overdurff Testimony, 6-20.

288. Ms. Overdurff acknowledged that the way for the membership at

large to resolve a complaint against a GHI member for violating GHI rules

is where a member whose membership was terminated by the Board

appeals to the membership. Overdurff Testimony, 6-21 to 6-22.

Mr. Schuman’s Rebuttal Testimony as to Why Closing Windows is Not an Option

to Prevent the Popovics’ Patio Smoking from Entering His Home 289. Mr. Schuman was asked whether closing his windows would be an

option when Mr. Popovic smokes on his patio, and he responded:

I don’t really consider that to be a solution to the problem because [of] several reasons: First, when we are required to run around and close our windows as soon as we smell Mr. Popovic’s smoke, the smoke is already present in the unit, and it’s not possible to get rid of the smoke by closing the windows. Smoke is already inside. Secondly, we can’t always close our windows because the weather conditions don’t allow it. Certainly not every day, but when the power was out from recent events, we couldn’t close our windows. It would just have been intolerable to stay inside with the windows closed and no power; so, we had the windows open. Of course, the house fills up with smoke. Lastly, I think I have said this already, we don’t think we should have to run around and close our windows whenever Mr. Popovic decides to smoke. Schuman Testimony, 6-25.


68

Mr. Schuman’s Rebuttal Testimony as to GHI’s Defense that Mr. Schuman could have

“Taken his Grievance to the Membership”

290. GHI’s letter to Mr. Schuman dated October 8, 2009 announcing the

Member Complaint Panel’s decision clearly stated, “there appears to be

nothing further that GHI can do to resolve the problem.” See Plaintiff

Exhibit 35 [GHI’s letter to Mr. Schuman dated October 8, 2009].

291. Mr. Schuman was asked, “Did GHI ever tell you, during any point in

this entire process before we got to Court, that you had the ability to take

this matter to the general membership?,” to which he responded, “[t]hey

did not.” Schuman Testimony, 6-26.

292. Mr. Schuman was asked whether there came a time when he tried to

ascertain whether he had exhausted his administrative remedies with GHI,

to which he responded:

There was. I sent them a very specific letter [Plaintiff Exhibit 38, Mr. Schuman’s letter to GHI dated November 30, 2009]. I think the language I used was, ‘Is this the final action of the cooperative?’ And to which they responded, ‘The Board regrets it can do nothing for you in this case.’ I took that to be the exhaustion of my administrative remedies.” Schuman Testimony, 6-27.

293. After receiving GHI’s letter to Mr. Schuman dated December 7, 2009

[Plaintiff Exhibit 39] in which GHI states “The Board regrets there’s nothing

more it can do for you regarding this matter,” Mr. Schuman contends that

there was no mention by GHI, at any time, that he had the right to bring his

complaint to GHI’s membership. Schuman Testimony, 6-28.


69

Mr. Repace’s Rebuttal Testimony

294. Mr. Repace testified that the Surgeon General’s Reports have a

scientific focus, rather than a regulatory focus since the Surgeon General

does not have any regulatory role with regard to secondhand smoke.


295. Mr. Repace testified that authors of the Kolb report that Dr. Gots

discussed during his testimony, applied Mr. Repace’s health risk model to

individual workers’ injury compensation claims. Repace Testimony, 6-31.

296. Thus, Mr. Repace believes that his health risk model is applicable,

not just to evaluate health risks for wide groups of people, but rather, can

evaluate the health risks of one specific person in an individual case, which

is exactly what he did when using his health model to evaluate Mr.

Schuman’s risks of lung cancer and heart disease. Repace Testimony, 6-

32.

297. Mr. Repace rebutted Dr. Gots’ claim that the limit of detection of the

Hammond monitor used by Mr. Repace in measuring the nicotine in Mr.

Schuman’s home was much higher than what Mr. Repace claimed it to be,

by stating:

the limit of detection is variable for concentration in air. It’s not variable with respect to the amount of nicotine that the monitor can detect, but the limit of detection can be very low depending on how long you leave the monitor in place. If you leave it in place for a week or so, the limit of detection would be much higher than if you left it in place for a month, as Mr. Schuman did. And if you left it in place for a year, the limit


70

would still be lower because it would simply collect more air and more nicotine. Repace Testimony, 6-33 to 6-34.

298. Mr. Repace responded to Dr. Gots’ chart containing “lots of zeros”

by identifying this argument as a “cigarette equivalent argument,” which is

an argument that the Surgeon General “discredited” “very explicitly” since

the “cigarette equivalent argument” is “an inappropriate way of expressing

exposure to secondhand smoke” and “an inappropriate way of assessing

risk from secondhand smoke.” Repace Testimony, 6-34 to 6-35.

299. Mr. Repace testified that he believed that Dr. Gots’ characterization

of the amount of time it would take for Mr. Schuman to breathe in one

direct cigarette worth of secondhand smoke filled air was “incomplete and

misleading” because it “implied that the risks and exposures were very

low,” whereas, Mr. Repace contends that the “curve for both lung cancer

and heart disease is ‘super-linear,’ and therefore, even small exposures

can correspond to very substantial risks.” Repace Testimony, 6-36 to 6-

37.

300. Mr. Repace testified that he has files containing “every important

paper [on the issue of secondhand smoke] that has ever been published,”

and not one of these scientific papers has supported Dr. Gots’ theory of

the measurement of the risks of secondhand smoke.” Repace Testimony,

6-38 to 6-39.


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301. Mr. Repace testified that Dr. Gots’ has connections with the tobacco

industry, including ties to RJ Reynolds Tobacco Company, who provided

Dr. Gots’ consulting organization with “lots of money.” Repace Testimony,

6-40 to 6-41.

302. Mr. Repace explained how his findings with regard to the outdoor

smoking test indicate that Mr. Schuman was exposed to secondhand

smoke when his windows were open, despite the machine registering the

same reading when used in the Courtroom:

the background levels in this Courtroom are dependent on the background levels from outdoors because the air is pulled into the building from outdoors; has a lot of diesel buses running around, and what I saw in my measurements in Mr. Schuman’s unit from Mr. Popovic’s outdoor smoking was an increase doubling of the level of carcinogens in both his dining room and his living room, and the levels were different. They were higher in the dining room, which is closer to Mr. Popovic, and lower in the living room. The absolute value of the carcinogen levels was not what was important. It was the fact that the relative values changed, which were a very strong indication that Mr. Popovic’s smoke was entering into the Schuman residence, and also, I detected with my nose, my eyes, the irritation and odor of secondhand smoke during the period when Mr. Popovic was smoking, and when he was not, I did not; so, it was a clear indication that smoke was coming in objectively.” Repace Testimony, 6-45 to 6-46.

303. Mr. Repace indicated that Mr. Popovic’s suggestion that burning

candles would alleviate Mr. Schuman’s problem would actually make the

problem worse, because it would “add pollution to the air,” including

“volatile organic compounds,” “in particular, carcinogenic suet.” Repace

Testimony, 6-47.


72

304. Mr. Repace indicated that the methods he employed to measure the

secondhand smoke in Mr. Schuman’s home, both migrating through the

inside walls and through the open windows are the preferred methods of

measurement. Repace Testimony, 6-48.

305. Mr. Repace believes that his risk assessment model is “widely

accepted” and “more than a dozen papers” “refer to it as an authoritative

risk assessment model and as an exposure assessment model” and it is

“widely accepted, and been recorded in the Surgeon General’s Report and

the reports of the National Academy of Sciences.” Repace Testimony, 6-

48 to 6-49.

Facts of Which the Court Took Judicial Notice2

2006 Surgeon General’s Report

History of Studies Concerning the Health Consequences of Secondhand Smoke

1. 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,

2 After finding no “problem with their authenticity, reliability or anything else,” the Court took judicial notice of both the 2006 and 2010 Surgeon General Reports on secondhand smoke. Trial Transcript, 2-183.


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Public Health Service, Health Services and Mental Health Administration,

1972. DHEW Publication No. (HSM) 72-7516.

2. 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.

3. 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) 84-50204 [hereinafter “the 1986 Surgeon

General’s Report”].

4. 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


74

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.

5. 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”].

6. 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.

7. The 2006 Surgeon General’s Report states that the report was:


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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.

8. 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

9. 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.

10. 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


76

of Health and Human Services, Public Health Service, National Institutes

of Health, National Institute of Environmental Health Sciences, National

Toxicology Program, 2000.

11. 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.

12. 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.

13. 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


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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”

14. 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.

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

smoldering cigarette. See 2006 Surgeon General’s Report at page 3.

16. 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.

17. 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.

18. 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


78

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.

19. 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.

20. Secondhand smoke is “involuntary” since “the exposure occurs as

an unavoidable consequence of breathing in a smoke-filled environment.”


Secondhand Smoke and Immediate Threat to the Normal Functioning of the Heart, Blood and Vascular Systems

21. 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.

22. Since 1986, however, many epidemiologic investigations have been

carried out on secondhand smoke exposure and its relationship to


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cardiovascular disease and stroke. See 2006 Surgeon General’s Report

at page 509.

23. 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.

24. 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.

25. 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.

26. 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_smok

e/health_effects/HeartDisease.htm (accessed on December 10, 2008).


80

27. 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.

28. 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.

29. 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).

30. 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_smok

e/health_effects/HeartDisease.htm (accessed on December 10, 2008).

See also 2006 Surgeon General’s Report at page 576-77, citing Pechacek


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TF, Babb S. Commentary: How acute and reversible are the

cardiovascular risks of secondhand smoke. British Medical Journal 2004;

328 (7446): 980-3.

31. 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 32. 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


82

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


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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


84

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 667-69.

HVAC Systems Cannot Fully Control Exposures to Secondhand Smoke

33. Current HVAC systems cannot fully control exposures to

secondhand smoke unless a complete and total smoking ban is enforced.


34. 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.


85

35. In fact, the operation of a heating, ventilating and air conditioning

system can actually distribute secondhand smoke throughout a building.


Positive Effect of Smoking Bans

36. 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. Journal of

Occupational and Environmental Medicine 2004b; 46(9): 887-905.

37. 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


86

building. Journal of the Air & Waste Management Association 1990; 40(7):

1012-7.

38. Another study by the New York State Department of Health

measured levels of cotinine3 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).

39. 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).

3 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.


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National, State and Local Laws Protecting the Public from the Dangers of Secondhand Smoke

40. 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.

41. 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.

42. 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.


88

43. 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.

44. 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.

45. 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).


89

46. 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://wwwno-smoke.org/pdf/internationalbarsandrestaurants.pdf

(accessed on December 10, 2008).

47. 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).

48. 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/ internationalbarsand

restaurants.pdf (accessed on December 10, 2008).


90

Outdoor Smoking Bans

49. More than 575 local jurisdictions have passed ordinances banning

smoking in outdoor areas. See 2006 Surgeon General’s Report at page

633.

50. 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

51. 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.

52. Eliminating smoking in indoor spaces fully protects nonsmokers from

exposure to secondhand smoke. See 2006 Surgeon General’s Report at

page 11.

53. 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.

2010 Surgeon General’s Report

54. 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


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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”].

55. 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 Foreword.

56. 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 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.

57. The 2010 Surgeon General’s Report also states:

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


92

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.

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

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.

Legal Principles Involved in this Case

I. INTRODUCTION

On the one hand, this is a case of first impression on the issues of

whether the migration of secondhand smoke from one adjoining

townhouse to another is a nuisance and what duties the landlord of both

properties has to prevent such migration. On the other hand, this case is

very simple in its application of centuries-old theories of nuisance and

landlord-tenant relationships.

Mr. Schuman and his next-door neighbors, Mr. and Mrs. Popovic,

live in Greenbelt Homes, Inc.’s cooperative housing complex. As


93

members of GHI’s cooperative, both Mr. Schuman and the Popovics are

bound by GHI’s Mutual Ownership Contract that that requires all members

“to respect the comfort and peace of mind of neighbors,” “not to engage in

conduct that is objectionable conduct,” and not to do any “act or thing that

shall or may be a nuisance, annoyance, inconvenience, or damage” to “the

occupants of adjoining dwellings.” The Popovics’ practice of smoking

inside their unit caused secondhand smoke to migrate into Mr. Schuman’s

unit through cavities in the parties’ common dividing wall, attic and crawl

space. Additionally, the Popovics’ practice of smoking on their patio

prevented Mr. Schuman from using his patio and caused Mr. Schuman to

keep his windows closed, but even with the windows closed, secondhand

smoke still entered Mr. Schuman’s home through open windows and

cracks around closed windows and doors. This secondhand smoke

caused Mr. Schuman significant physical discomfort and negative health

effects, including dry eyes, nose and throat and an upper respiratory

infection. Of course, the mortal dangers of secondhand smoke are well

known with regard to the potential for causing cancer and heart attacks.

Mr. Schuman filed suit against the Popovics on nuisance, trespass,

negligence and breach of contract theories, and against GHI, claiming

breach of contract, including the breach of the implied covenant of quiet

enjoyment, and negligence for failing to enforce the “nuisance” clause in

the Mutual Ownership Contract. Mr. Schuman also moved for a


94

declaratory judgment as to whether the Popovics’ smoking was a nuisance

under the Mutual Ownership Contract and for a permanent injunction

directing the Popovics to refrain from smoking inside their unit or on their

patio.4

II. NUISANCE The central question that must be answered before the Court can

address each of Mr. Schuman’s causes of action is whether the Popovics’

smoking habits violated the “nuisance clause” of the Mutual Ownership

Contract that all GHI members (including Mr. Schuman and the Popovics)

must enter into as a condition of their membership and residence in GHI’s

housing cooperative. For the reasons that follow, this Honorable Court

holds that the migration of secondhand smoke from the Popovics’ property

to Mr. Schuman’s property is a nuisance to Mr. Schuman, both at common

law and pursuant to GHI’s Mutual Ownership Contract.

A. It is easier for a plaintiff to prove a nuisance under GHI’s “nuisance clause” than under Maryland common law.

GHI’s Mutual Ownership Contract contains a “nuisance clause” that

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,

4 In August 2010, the Popovics agreed not to smoke inside their home, and based on this agreement, the Court entered a temporary injunction by consent, prohibiting the Popovics from smoking inside their home.


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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 agreed 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. [emphasis added].

It is easier for a plaintiff to prove a nuisance under GHI’s “nuisance clause”

than under Maryland common law, since GHI members must “respect the

comfort and peace of mind of neighbors” and must not engage in

“objectionable conduct” or “annoy” or “inconvenience” their neighbors. The

Popovics’ smoking practices, were, and continue to be, a nuisance to Mr.

Schuman pursuant to GHI’s Mutual Ownership Contract since the

Popovics’ smoking practices disrupted Mr. Schuman’s “comfort and peace

of mind” and were “objectionable conduct” that “annoyed” and

“inconvenienced” Mr. Schuman, but also are a nuisance under Maryland

common law.

B. Definition of nuisance under Maryland common law.

There are many definitions of nuisance found under Maryland

common law over the years. In Herilla v. Mayor and City Counsel of

Baltimore, 37 Md. App. 481, 491 (1977), the court defined “nuisance” as


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“anything that works or causes injury, damage, hurt, inconvenience,

annoyance, or discomfort to one in the legitimate enjoyment of his

reasonable rights of property, or which renders ordinary use and

occupation by a person of his property uncomfortable to him.” “The rule

which must control is whether the nuisance complained of will or does

produce such a condition of things as in the judgment of reasonable men is

naturally productive of actual physical discomfort to persons of ordinary

sensibilities, tastes, and habits, such as in view of the circumstances of the

case is unreasonable and in derogation of the rights of the party subject to

the qualification that it is not every inconvenience that will call forth the

restraining power of a court. The injury must be of such a character as to

diminish materially the value of the property as a dwelling and seriously

interfere with the ordinary comfort and enjoyment of it.” Meadowbrook

Swimming Club, Inc. v. Albert, 173 Md. 641, 645 (1938). See also Five

Oaks Corporation v. Gathmann, 190 Md. 348, 354 (1948); Fox v. Ewers,

195 Md. 650, 658 (1950). “All tangible intrusions, such as noise, odor, or

light fall within the realm of nuisance.” Exxon Corporation v. Yarema, 69

Md. App. 124, 147 (1986). “A disturbance of the comfort or convenience of

the occupant, as by loud noises is a nuisance. So long as the interference

is substantial and unreasonable, and such as would be offensive or

inconvenient to the normal person, virtually any disturbance of enjoyment

of property may amount to a nuisance.” Yarema, 69 Md. App. at 148.


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“Nuisance is not contingent upon whether the defendant physically

impinged on plaintiff’s property, but whether the defendant substantially

and unreasonably interfered with plaintiff’s use and enjoyment of its

property.” Yarema, 69 Md. App. at 148. “The rights of neighboring

landowners are relative; the uses by one must not unreasonably impair

the uses of the other. When one landowner’s use of his or her property

unreasonably interfere with another’s enjoyment of his or her property, the

use is said to be a private nuisance.” Yarema, 69 Md. App. at 149. If an

action is taken “is such as to interfere with the physical comfort, by

another, of his property, or such as to occasion substantial injury to the

property itself, there is wrong to the neighboring owner for which an action

will lie.” The Susquehanna Fertilizer Company of Baltimore City v. Malone,

73 Md. 268, 280 (1890). The “neighboring owner is entitled to the

reasonable and comfortable enjoyment of his property, and if his rights in

this respect are invaded, he is entitled to the protection of the law, let the

consequences be what they may.” Susquehanna Fertilizer, 73 Md. at 282.

“There is liability for a nuisance only to those to whom it causes significant

harm, of a kind that would be suffered by a normal person in the

community or by property in normal condition and use for a normal

purpose.” Echard v. Kraft, 159 Md. App. 110, 118 (2004).

In Washington Suburban Sanitary Commission v. CAE-Link

Corporation, 330 Md. 115, 147 (1993), the court found that “odors


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emanating from [the defendant’s] plant” was a nuisance when the odors

“produced actual physical discomfort to persons of ordinary sensibilities,

tastes, and habits, thereby diminishing materially the value of the

[plaintiff’s] property as a commercial establishment and seriously

interfering with their ordinary comfort and enjoyment.”

In Gorman v. Sabo, 210 Md. 155 (1956), two next-door neighbors

were involved in a suit in which one neighbor intentionally played a loud

radio to annoy and harass the other neighbor. In Gorman, the court

observed that “[i]f noise causes physical discomfort and annoyance to

those of ordinary sensibilities, tastes and habits and seriously interferes

with the ordinary comfort and enjoyment of their homes, and thus

diminishes the value of the use of their property rights, it constitutes a

private nuisance, entitling those offended against to damages.” Id. at 159.

“So long as the interference is substantial and unreasonable, and such as

would be offensive or inconvenient to the normal person, virtually any

disturbance of the enjoyment of the property may amount to a nuisance.”

Id.

C. In nuisance cases, corroboration from similarly situated neighbors is instructive to show that these neighbors have experienced the same discomfort from the same source.

In nuisance cases, corroboration from similarly situated neighbors is

instructive to show that these neighbors have experienced the same

discomfort from the same source. In Bishop Processing Company v.


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Davis, 213 Md. 465, 471 (1957), the court stated “when persons are

complaining of offensive and obnoxious odors and their effect upon those

persons and their properties, it seems peculiarly appropriate and

impressively corroborative of the appellees’ complaints to show that

others, similarly situated, have experienced the same discomfort from the

odors springing from the same source.” Additionally, the Bishop

Processing court noted that in Meadowbrook Swimming, 173 Md. 641,

“there were only a few plaintiffs, yet, in excess of twenty persons testified

for the plaintiffs with regard to the nuisance, and its effect upon the

witnesses rather than upon the properties or persons of the plaintiffs.”

Bishop Processing Company, 213 Md. at 471.

D. Legal activities may constitute a nuisance.

Legal activities may constitute a nuisance. In Anne Arundel County

Fish & Game Conservation Association, Inc. v. Carlucci, 83 Md. App. 121,

123 (1989), neighbors (many of whom “came to the nuisance” by moving

to the neighborhood after the establishment of the club) sought an

injunction against a gun club on the theory that the operation of the gun

club (which caused loud noise) was a nuisance. At trial, the gun club

“produced no witnesses who live within the vicinity of the Club and who felt

that the noise from the Club's activities was not a material annoyance” and

the neighbors testified as to their efforts to persuade the gun club to modify

their gunfire activities and that their calls to the police department did not


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yield results. Id. at 125. After the trial court issued the injunction sought

by the neighbors, the gun club appealed. Id. at 123. On appeal, the gun

club argued that since it was not subject to noise restrictions imposed by

the Maryland Department of the Environment, its activities could not be

enjoined as a private nuisance. Id. at 125. The appellate court disagreed,

holding that this fact would not bar the neighbors’ nuisance claim, stating

that:

The law is clear that where a trade or business as carried on interferes with the reasonable and comfortable enjoyment by another of his property, a wrong is done to a neighboring owner for which an action lies at law or equity. In such cases it makes no difference that the business was lawful and one useful to the public and conducted in the most approved method. The rule which must control is whether the nuisance complained of will or does produce such a condition of things as in the judgment of reasonable men is naturally productive of actual physical discomfort to persons of ordinary sensibilities, tastes, and habits, such as in view of the circumstances of the case is unreasonable and in derogation of the rights of the party subject to the qualification that it is not every inconvenience that will call forth the restraining power of a court. The injury must be of such a character as to diminish materially the value of the property as a dwelling and seriously interfere with the ordinary comfort and enjoyment of it. Id. at 127, 131. [citations omitted]. In Reid v. Brodsky, 397 Pa. 463, 465 n.1 (1959), the court found that

even though a taproom was authorized by the zoning authorities, such

authorization “does not affect the power of a court of equity to enjoin it as a

nuisance.” Moreover, the Brodsky court found that operation of the

taproom in a residential area “amounted to a nuisance in fact and in law”

and that “unless the operation of this taproom-restaurant be enjoined,” “the


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conduct complained of will continue.” Brodsky, 397 Pa. at 472.

In BP 1330 Connecticut Avenue, LLC v. Burger 1300 Connecticut

Avenue, LLC, Docket Number 2010-CAB-1535, District of Columbia

Superior Court, Civil Division, August 24, 2010 [hereinafter Rogue States]

a hamburger grilling establishment created fumes that migrated into an

adjoining office building. See copy of the Rogue States August 24, 2010

transcript that was included as Exhibit 1 of the appendix to the instant

document. The Rogue States court found that “plaintiff has met its burden”

that the “emissions from Rogue States create a private nuisance, a

substantial and unreasonable interference with private use and enjoyment

of [the neighbor’s office premises]” by “clearly demonstrating that (1) there

is a substantial likelihood that the plaintiffs - - plaintiff will prevail on the

merits of its private nuisance claim; (2) the plaintiff is in danger of suffering

irreparable harm during the pendency of the action; (3) that more harm will

result to the plaintiff from the denial of the injunction than would result to

the defendant from granting it. This is the balancing of the equities test.

This has been described. And, three, that the public interest will not be

disserved by the issuance of the requested order.” Id. at pages 8-9.

Importantly, the Rogue States court found “that the equities tip in favor of

the plaintiff because people, working people, that were in the 1330 space

before the restaurant opened have had their health effected [sic] by the

emissions and exhaust from the restaurant and should be able to, and


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have a right to employment in an environment free [of] noxious odor and

health effects from that. And for public interest, the public does have an

interest in everything I’ve just described, so that is a factor here. Id. at

page 11. At trial, the Rogue States court found that employees in the

adjoining office building “have been forced to endure almost nine months

of fumes and odor [from] Rogue States’ exhaust.” See page 3 of copy of

the Rogue States October 12, 2010 trial transcript that was included as

Exhibit 2 of the appendix to the instant document. The Rogue States court

found that the plaintiff has clearly established that the restaurant produced

a “greasy and meaty odor” that “has wafted into” the plaintiff’s office. Id. at

page 4. This odor was “an intense and noxious odor of burnt or a smell of

burnt meat, grease, and smoke.” Id. at page 7. Moreover, the court found

that the employees “have suffered health effects from the smoke discharge

from the exhaust discharged from Rogue States, including headaches,

dizziness, and nausea.” Id. at page 15. Furthermore, the court found that

the plaintiff’s clients “have complained about or asked about the smell” and

that the “continuing issue with the odor does affect the [plaintiff’s] quality of

life.” Id. at page 16. The court provided an answer to its own question,

“[W]hat exactly is meant by private use and enjoyment [of land]?” by

stating, “I find that this broad concept certainly includes participation in the

workforce and applies to one’s day-to-day functioning at work and use of

the workplace provided by one’s employer. In this case, it applies to the


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use and enjoyment by [the plaintiff’s] employees of the [work] premises.”

Id. at pages 17-18. The court then asked, “[W]hat degree of interference

with the use and enjoyment of land reaches the level of, quote, ‘substantial

and unreasonable?,’” and answered, “Without question, the interference

must exceed that which one would expect from life in a major American

city. The plaintiff should expect the same level of noise, odor, and

inconvenience as anyone else in the workplace in Washington, D.C., but

they shouldn’t 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 than that is

unacceptable.” Id. at page 18. Addressing expert testimony with regard to

proving the nuisance, the court stated, “While the testimony of various

expert witnesses was helpful to the Court, expert testimony is

certainly not required to prove a nuisance. Ample evidence of a

substantial and unreasonable interference with the private use and

enjoyment of the premises comes from the entirely credible firsthand

testimony of witnesses who actually work in the [plaintiff’s] building.”

[emphasis added]. Id. at page 19. The court found there to be a nuisance

even though the plaintiff’s employees are “exposed to the foul odor of burnt

hamburger meat and grease not on a daily but on a regular basis.” Id. at

page 20. In finding there to be a nuisance, the court found that the smell


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has “affected morale,” “is bothersome,” “causes significant health effects”

and “is an irritant.” Id. at page 22.

The Rogue States case is instructive with regard to the instant

matter because it highlights how what may be described as an unpleasant

odor can become a nuisance. In the instant matter, however, secondhand

smoke from the Popovics’ property is much worse than the hamburger

odors that the Rogue States restaurant produce since secondhand smoke

causes cancer and causes numerous health problems in addition to merely

smelling bad. Furthermore, Rogue States shows that perfectly legal

activities (e.g. grilling hamburgers) can become a nuisance. While

smoking is legal in Maryland, the practice of smoking in a multi-unit

dwelling where the secondhand smoke migrates into other homes is a

nuisance.

E. In order to constitute a nuisance, secondhand smoke does not have to be injurious to the plaintiff’s health, but rather it is sufficient if the smoke is so offensive as to interfere with the comfortable enjoyment of the plaintiff’s home.

In Andrews v. Perry, 216 N.Y.S. 537, 543 (Supreme Court of N.Y.,

Onondaga Cty. 1926), the court stated “[t]o constitute a nuisance, vapors

and odors do not necessarily have to be injurious to one’s health. It is

sufficient if the fumes are so offensive as to interfere with the comfortable

enjoyment of one’s home.”


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F. It is not necessary for a plaintiff in a nuisance action to vacate his or her home due to the nuisance. It is not necessary for a plaintiff in a nuisance action to vacate his or

her home due to the nuisance. In Andrews v. Perry, 216 N.Y.S. 537, 543

(Supreme Court of N.Y., Onondaga Cty. 1926), the court stated “It is urged

that the plaintiffs were not driven from their dwelling, but have continued to

live in their house, notwithstanding all their alleged annoyance. Such fact

does not deprive them of the relief they seek. It is enough if the

reasonable enjoyment of their property has been rendered uncomfortable

by the use to which the defendants have put their property.”

G. There is no “right to smoke.”

Throughout the testimony in this case, GHI and Mr. Popovic have

implied that the Popovics have the “right to smoke.” However, a review of

the common law reveals that there is no such “right to smoke.” This

holding is supported by several cases in other jurisdictions: In Fagan v.

Axelrod, 146 Misc. 2d 286, 297, (Supreme Ct. of New York, Albany

County, January 10, 1990), the court found that “[t]here is no more a

fundamental right to smoke cigarettes than there is to shoot up or snort

heroin or cocaine or run a red light.” In Giordano v. Connecticut Valley

Hospital, 588 F. Supp. 2d 306, 321 (D. Conn. 2008), the court observed

that the plaintiffs in a case challenging a smoking ban in a hospital “have

not demonstrated that the right to privacy encompasses a right to smoke, a


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task made that much more difficult because the Second Circuit has

rejected the notion that smoking is a fundamental right deserving of

heightened scrutiny.” In Operation Badlaw v. Licking County General

Health District, 866 F. Supp. 1059, 1064 (S.D. Ohio 1992), the court found

that “[i]t is clear that the right to smoke is not a fundamental right.” See

also American Legion Post 149 v. Department of Health, 192 P. 3d 306,

322 (Wash. 2008). In City of North Miami v. Kurtz, 653 So. 2d 1025, 1028

(Fla. 1995), the court found that “the federal constitution's implicit privacy

provision extends only to such fundamental interests as marriage,

procreation, contraception, family relationships, and the rearing and

educating of children. Clearly, the "right to smoke" is not included within

the penumbra of fundamental rights protected under that provision.” In

Grass v. Sargent, 903 F.2d 1206, 1206 (8th Cir. 1990), the court held that

there is no constitutional right to smoke in prison. See also Kwon v.

Johnson, 2010 U.S. Dist. LEXIS 129223, *4 (W.D. Va. 2010). In Unger v.

Unger, 274 N.J. Super. 532, 540 (Burlington County Superior Court, New

Jersey, March 29, 1994), the court observed that “[w]hile no court in New

Jersey has found that the right to smoke has risen to the level of a

constitutionally protected right, even a parent's constitutionally protected

right may be restricted upon a showing that the parent's activity may tend

to impair the physical health of the child.”


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H. Secondhand smoke is a nuisance under the laws of other states.

1. Upper East Lease Associates, LLC v. Cannon, 2011 NY Slip Op. 50054U, *1 (Dist. Ct. of NY, 1st Dist. Nassau County January 20, 2011)

In Upper East Lease Associates, LLC v. Cannon, 2011 NY Slip Op.

50054U, *1 (Dist. Ct. of NY, 1st Dist. Nassau County January 20, 2011),

the court stated that “[i]n modern high-rise apartment settings, a tenant’s

home is not [emphasis in original] the tenant’s castle. Landlords of such

dwellings have a corresponding duty to prevent one tenant’s habits from

materially interfering with another tenant’s right to quiet enjoyment. When

a tenant’s smoking results in an intrusion of second-hand smoke into

another tenant’s apartment, and that tenant complains repeatedly, the

landlord runs a financial risk if it fails to take appropriate action.” In

Cannon, the non-smoking tenant complained to the landlord about her

neighbor in the apartment below who smoked. Id. at *3. The court

observed that the landlord “initially tried, in good faith, to rectify the

nuisance” by “caulking and sealing around vents that may have been

conductors of cigarette smoke from the apartment below,” but that “it was

apparent to both plaintiff and defendant that these measures were

ineffective.” Id. The court found that “when these initial actions proved

ineffective, the landlord was obligated to take further steps to alleviate the

condition.” Id. at *4. The court concluded that the “landlord had the power


108

and duty to protect its tenants, when necessary, from second-hand smoke

constituting a ‘nuisance’ or a ‘health hazard.’” Id. Even though the non-

smoker presented no evidence that the smoking “constituted a health

hazard,” the court found that “it was enough of a ‘nuisance’ to warrant

action by the landlord.” Id. Moreover, the court found that secondhand

smoke infiltration may lead to a breach of a landlord’s warranty of

habitability and can be grounds for a constructive eviction.” Id. at *3.

2. Poyck v. Bryant, 13 Misc. 3d 699, 700 (Civil Ct. of the City of New York, August 24, 2006)

In Poyck v. Bryant, 13 Misc. 3d 699, 700 (Civil Ct. of the City of New

York, August 24, 2006), the court stated that “[w]ith multiple neighbors

living beside each other comes basic duties and responsibilities. There is

a duty to protect each other’s right to privacy and a responsibility not to

invade a neighbor’s privacy. The unwanted invasion of privacy comes in

many guises such as noise, smells, odors, fumes, dust, water and even

secondhand smoke. The key to avoiding such unneighborly behavior is for

the neighbor to follow the often forgotten ‘Golden Rule’ – You shall love

your fellow or neighbor as yourself. The Golden Rule is a general principle

of ethics which essentially admonishes neighbors as follows: What is

hateful to you, do not do to your neighbor.” The Poyck court also held that

“[t]he landlord also has an obligation to ensure that the conditions do not

render the apartment ‘unsafe and uninhabitable’ or prevents the premises


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from serving their intended function of residential occupation. When

neighbors fail to respect each other and the landlord does not act, the law

imposes its will on landlords and tenants through the statutorily enacted

[by the New York state legislature] implied warranty of habitability.” Id.

The Poyck court observed that there is an implied warranty of habitability

in every landlord-tenant relationship “where the landlord impliedly warrants

as follows: First, that the premises are fit for human habitation; second,

that the condition of the premises is in accord with the uses reasonably

intended by the parties; and third, that the tenants are not subjected to any

conditions endangering or detrimental to their life, health or safety.” Id. at

700-01. In Poyck, the plaintiff was a landlord who owned a condominium

in a building in New York City and commenced the action to collect rent

from the defendant whose defense was that secondhand smoke from a

neighboring apartment (not owned or controlled by the plaintiff) migrated

into his unit. Id. at 703. The non-smoking defendant complained to both

the landlord-plaintiff and the building’s management, but neither took

action to stop the migration of smoke. Id. The non-smoking defendant

vacated the premises due to the secondhand smoke and the plaintiff-

landlord filed his action to collect the unpaid rent for the rest of the lease

period. Id. at 704. In holding that there were “triable issues of fact as to

whether the secondhand smoke breached the implied warranty of

habitability and caused a constructive eviction,” the Poyck court found the


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plaintiff-landlord’s argument that “he cannot be held liable for the actions of

third parties beyond his control” to be “misplaced” since “courts have

continuously held that the implied warranty of habitability can apply to

conditions beyond a landlord’s control.” Id. at 705. Among the actions the

plaintiff-landlord could have taken, the court observed, was that the

landlord “could have asked the board of managers of the condominium to

stop the neighbors from smoking” and “commenced an action for damages

or injunctive relief for noncompliance with the bylaws and decisions of the

board of managers.” Id. at 705-06.

3. Utah Code § 78B-6-1101

Utah Code § 78B-6-1101 states:

(1) A nuisance is anything which is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. A nuisance may be the subject of an action. . . . (3) A nuisance under this part includes tobacco smoke that drifts into any residential unit a person rents, leases, or owns, from another residential or commercial unit and the smoke: (a) drifts in more than once in each of two or more consecutive seven-day periods; and (b) creates any of the conditions under Subsection (1).” [emphasis added].

4. Heck v. Whitehurst Co., 2004 Ohio App. LEXIS 3972, *5 (Ohio Ct. of App.. 6th App. Dist., Lucas Cty. August 20, 2004)

In Heck v. Whitehurst Co., 2004 Ohio App. LEXIS 3972, *5 (Ohio Ct.

of App.. 6th App. Dist., Lucas Cty. August 20, 2004), the plaintiff sued his

landlord after the landlord failed to take action with regard to the plaintiff’s


111

complaints that secondhand smoke migrated into his home from the

apartment below. Specifically, the plaintiff complained in a letter to the

landlord that “cigarette smoke is entering into my bedroom and my

bathroom in extreme volumes. The people below me smoke and it is

traveling up into my apartment. I have been complaining about this

problem for 4 months. The maintenance guy has come into my apartment

and tried some small things, that has [sic] failed to help, actually he last

placed a pipe into the ceiling of my closet, which has made the problem

worse. It acts as a funnel, funneling cold air and smoke into my room,

from the attic causing my heater to constantly run, and I have to open my

windows to let the smoke out (even when its [sic] zero degrees out.). Not

only do all of my clothes and bed sheets smell like cigarettes, but I have

been coming down with many upper respiratory infections, including

bronchitis.” Id. at *5-6. At trial, the landlord testified that it “made

numerous efforts to identify potential leaks, removed switch plate covers,

and outlets, sealed them, pulled back carpet, sealed the area between the

tack strip and the bottom of the wall and sealed flue pipes” and “did

everything it could to rectify the problem.” Id. at *29. The court found that

“the trial court’s findings were supported by credible evidence that smoke

was infiltrating [the plaintiff’s] apartment and that [the landlord] had not

made the repairs necessary to keep the apartment in a fit and habitable

condition.” Id. at *31. The court affirmed the trial court’s rent abatement


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for the plaintiff’s “inability to use and enjoy his master bedroom and closet”

and found that while “there was no express testimony on the value of the

property in its defective condition,” this “was not fatal to the court’s damage

calculation” because “it is the finder of fact’s role to determine the

monetary value of the rental property in its defective condition” and the

plaintiff’s testimony “regarding the effects that the smoke had on the

habitability of the apartment and on his clothes, provided the court with

sufficient evidence upon which to base a monetary award.” Id. at *34.

5. Merrill v. Bosser, Case Number 05-4239 COCE 53 (Broward County (Florida) County Court June 29, 2005)

In Merrill v. Bosser, Case Number 05-4239 COCE 53, Broward

County (Florida) County Court June 29, 2005 (accessed from

http://ash.org/merrillcase.pdf on October 14, 2011), the court, at the outset,

stated, “To start with, the Court believes it is appropriate to state what this

case is and is not about. This is not a case about secondhand smoke.

Rather, as persuasively argued by the Plaintiff, it is about excessive

secondhand smoke.” Bosser, *1. In Bosser, the plaintiff moved into a

condominium unit where a smoker resided one floor up and one unit over.

Id. at *1. After another smoker moved into the smoker’s apartment, the

plaintiff began complaining about smoke seeping into her unit. Id. at *1-2.

The condominium’s declaration contained a “nuisance clause” that stated

that “a unit owner shall not permit or suffer anything to be done in his unit


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which will interfere with the rights of other unit owners or annoy them by

unreasonable noises, or otherwise, nor shall the unit owners commit or

permit any nuisance in or about the Condominium property.” Id. at *2-3.

[quote as set forth in opinion minus brackets]. The Bosser court entered

judgment on the plaintiff’s behalf with regard to her nuisance claim even

though it found that “there is no case on point in Florida as to whether

secondhand smoke is considered a private nuisance” since other Florida

courts “have allowed a nuisance action to proceed based on odors created

by another party” and since the “Court of Appeals of Nebraska held that to

have the use and enjoyment of one’s home interfered with by smoke, odor,

and similar attacks upon one’s senses is a serious harm.” Id. at *5.

6. McCormick v. Moran, 699 N.Y.S. 2d 273 (City Court of New York, Watertown, November 15, 1999).

In McCormick v. Moran, 699 N.Y.S. 2d 273 (City Court of New York,

Watertown, November 15, 1999), the court ordered the tenant (who

smoked in the house) to pay the landlord for the cost of cleaning the home

after the tenant moved out. The court found that “the [tenant’s] conduct of

excessive smoking while in the house caused the tobacco smoke residue

to collect on various surfaces of the house creating an offensive odor and

a potential health risk that may arise to others who may use the premises.”

Id. at 274. Additionally, the court found that “[w]hen the use of tobacco by

a tenant causes such a pervasive coating of tobacco smoke residue on a


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leasehold’s surfaces, this condition results in more ordinary wear and tear

to the premises because the residue must be removed to make the rooms

habitable for the protection of the health of the next tenants – a condition

which if it were not corrected would be detrimental to their life, health or

safety possibly subjecting the landlord to a violation of the warranty of

habitability.” Id. at 274-275.

I. Secondhand smoke is a “nuisance per se” rather than a “nuisance in fact.”

Secondhand smoke is a “nuisance per se” rather than a “nuisance in

fact.” “To constitute a nuisance per se, the activity sought to be enjoined

must be a nuisance at all times and under any circumstances regardless of

location or surroundings." Leatherbury v. Gaylord Fuel Corp., 276 Md.

367, 377 (1975). The United States Surgeon General’s finding that there

is no risk-free level of exposure to secondhand smoke requires such a

finding. See 2006 Surgeon General’s Report at page 11.

III. TRESPASS

“A trespass is defined as an intentional or negligent intrusion upon or

to the possessory interest in property of another.” Bittner v. Huth, 162 Md.

App. 745, 752 (2005). “Every unauthorized entry upon the land of another

is a trespass, and whether the owner suffers substantial injury or not, the

owner at least sustains a legal injury, which entitles the owner to a verdict

for some damages; though they may, under some circumstances, be so


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small as to be merely nominal.” Bittner v. Huth, 162 Md. App. 745, 752

(2005). In the instant case, all parties agree that secondhand smoke from

the Popovics’ home and patio intruded upon Mr. Schuman’s home and

patio. At all relevant times, the Popovics knew that their smoke was

trespassing onto Mr. Schuman’s property. Thus, Mr. Schuman has proven

a cause of action against the Popovics for trespass.

IV. BREACH OF CONTRACT

Mr. Schuman claims that the Popovics, on one hand, and GHI, on

the other hand, breached the “nuisance clause” of GHI’s Mutual Ownership

Contract. With regard to his claim against the Popovics, Mr. Schuman

claims that he is a third-party beneficiary of the Mutual Ownership Contract

between the Popovics and GHI, and thus, has standing to sue the

Popovics for the Popovics’ violations of the “nuisance clause” of the

Popovics’ Mutual Ownership Contract. With regard to his claims against

GHI, Mr. Schuman claims that GHI breached the implied covenant of quiet

enjoyment (and thus, breached Mr. Schuman’s Mutual Ownership

Contract) by failing to take action to prevent the Popovics from smoking

inside their home and outside their home at a distance where secondhand

smoke could migrate into Mr. Schuman’s home through open windows and

through cracks around closed windows and doors.

In Taylor v. NationsBank, N.A., 365 Md. 166, 175 (2001), the court

found that “[t]o prevail in an action for breach of contract, a plaintiff must


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prove that the defendant owed the plaintiff a contractual obligation and that

the defendant breached that obligation. It is not necessary that the plaintiff

prove damages resulting from the breach, for it is well settled that where a

breach of contract occurs, one may recover nominal damages even though

he has failed to prove actual damages.”

A. Under GHI’s Mutual Ownership Contract, GHI is the landlord and Mr. Schuman and the Popovics are tenants, and therefore, pursuant to the Mutual Ownership Contract, GHI has the power to enforce the “nuisance” clause contained in the Mutual Ownership Contract and to take action to prevent the Popovics’ from smoking in their home or on their patio. Under GHI’s Mutual Ownership Contract, GHI is the landlord and Mr.

Schuman and the Popovics are tenants, and therefore, pursuant to the

Mutual Ownership Contract, GHI has the power to enforce the “nuisance”

clause contained in the Mutual Ownership Contract and to take action to

prevent the Popovics’ from smoking in their home or on their patio.

Specifically, the Mutual Ownership Contract provides that “this Contract

creates a legal relationship between GHI and Member as that of landlord

and tenant.” See page 1 of Plaintiff Exhibit 20 [Mr. Schuman’s Mutual

Ownership Contract]. This “landlord-tenant” relationship was confirmed in

Green v. Greenbelt Homes, Inc., 232 Md. 496, 500 (1963), in which a

member of GHI’s cooperative housing cooperative violated the terms of

GHI’s Mutual Ownership Contract [presumably the same contract as in the

instant case] by “persistently and grossly” violating the Mutual Ownership


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Contract by failing to provide sanitary care for her pets, failing to maintain

adequate housekeeping standards and creating offensive odors. See also

Village Green Mutual Homes, Inc. v. Randolph, 362 Md. 179, 183 (2000).

As a result, GHI ordered the member to vacate the premises. Green, 232

Md. at 500. The trial court found that GHI’s Mutual Ownership Contract

contained “restrictions on the use of the cooperative dwelling unit” which

gave the corporation the “right to terminate the contract” in the event of the

member’s breach. Id. at 504. Additionally, the Green court found that

there was “no practical difference between [GHI’s Mutual Ownership

Contract] and a lease which provides that it can be terminated by the

lessor when its provisions as to the use to be made of the premises by the

lessee are breached.” Id. The court also found that the member had the

status of a “tenant.” Id. Moreover, the court observed that “[a]n important

factor in the maintenance of a cooperative housing project is the control of

the activities of the cooperative members living within the project” and that

The economic and social interdependence of the tenant-owners demands cooperation on all levels of cooperative life if a tolerable living situation is to be maintained. Each tenant-owner is required to give up some of the freedoms he would otherwise enjoy if he were living in a private dwelling and likewise is privileged to demand the same sacrifices of his cotenant-owners with respect to his rights. By analogy, the cooperative agreement is really a community within a community, governed, like our municipalities, by rules and regulations for the benefit of the whole. Whereas the use of lands within a city is controlled by zoning ordinances, the use of apartments within the cooperative project is controlled


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by restrictive covenants. The use of the common facilities in the project is controlled on the same theory that the use of city streets and parks is regulated. In both situations compliance with the regulations is the price to be paid to live in and enjoy the benefits of the particular organization. Id. at 503-04.

In Village Green, 362 Md. at 191, the court recognized that “the activities of

cooperative members may be contractually regulated and that these

regulations should be enforced.” Thus, GHI owed the same duties to Mr.

Schuman that all landlords owe to their tenants and had the power to

enforce the “nuisance” clause contained in the Mutual Ownership Contract

and to take action to prevent the Popovics’ from smoking in their home or

on their patio.

B. Covenant of Quiet Enjoyment. “In Maryland, generally, in the absence of an actual or constructive

eviction, a tenant will have a claim for damages caused by conduct by the

landlord that strikes at the essence of its obligations under the lease.

Thus, there may be a breach of the covenant of quiet enjoyment even

when the tenant remains in possession of the premises. The scope or

magnitude of the interference necessary to constitute a breach of the

covenant of quiet enjoyment must be such as goes to the essence of what

the landlord is to provide. If that is proven, a breach of the covenant of

quiet enjoyment will be established and the tenant may recover damages

incurred by the breach, i.e., the difference in value between what the

tenant in fact received and what he would have received, absent the


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breach.” Nationwide Mutual Insurance Co. v. Regency Furniture, Inc., 183

Md. App. 710, 734 (2009) (citations omitted). In Brooks v. Lewin Realty III,

Inc., 378 Md. 70, 84 (2003), the court stated that the landlord has a

continuing duty to keep the dwelling free of flaking, loose, or peeling paint, at all times while the dwelling is in use, in order for the landlord to remain in compliance with the Housing Code. The nature of the landlord's duty is continuous. The Housing Code does not limit the landlord's duty to keep the premises free of flaking paint to a one-time duty at the inception of the lease. The landlord must take whatever measures are necessary during the pendency of the lease to ensure the dwelling's continued compliance with the Code.

In Lewin Realty, 378 Md. at 86, the court stated that in a negligence case,

it will be the “duty of the trier of fact to determine whether the steps taken

by the landlord to ensure continued compliance with the Code, i.e., the

frequency and thoroughness of inspections, and the maintenance of the

interior surfaces of the dwelling, were reasonable under all the

circumstances. The test is what a reasonable and prudent landlord would

have done under the same circumstances.”

In Bocchini v. Gorn Management Company, 69 Md. App. 1, 4

(1986), a woman rented an apartment and a woman moved in upstairs and

began to “keep company” with a man in her apartment, which had no

carpet on the floors. The woman and the man created “unbearable” noise

during the middle of the night and had a “very loud alarm clock” that went

off at 5:00 a.m. Id. After the Bocchini plaintiff’s efforts to directly resolve

the problem with her neighbors failed, the plaintiff complained to the


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landlord and informed the landlord that the “noise continued unabated and

that it was impossible for her and her daughter to get adequate sleep or

quietly enjoy the premises they had rented, but these letters had “no

effect.” Id. Later, the landlord informed the victim of the noise that it “was

not going to take any action regarding the problem.” Id. at 5. Thereafter,

the Bocchini plaintiff filed suit against the landlord alleging that the

neighbor’s lease “included a clause against excessive noise” and that the

landlord’s refusal to enforce that provision “ratified and encouraged” the

neighbor’s behavior. Id.

In Bocchini, the court observed that “a lessee who holds under one

who has a fee in the premises demised, is entitled to the quiet enjoyment

of them during his term, and there is an implied covenant to that effect on

the part of the lessor in the case where none is expressed, if the contrary

be not stated.” Id. at 6. The implied covenant of quiet enjoyment

“insulates the tenant against acts or omissions on the part of the landlord,

or anyone claiming under him, which interferes with the tenant’s right to the

use and enjoyment of the premises for the contemplated purposes.” Id.

The “covenant of quiet enjoyment is implied in every lease, absent some

provision in the lease negating such an implied covenant.” Id. at 7. With

regard to conditions caused by other tenants, the court in Bocchini found

that “[w]here, through lease provisions or otherwise, [the landlord] has [the

ability to correct or terminate the actions of the tenant], the thought is that


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[the landlord] ought not to be able to escape his obligation under a

covenant of quiet enjoyment by steadfastly refusing to exercise his

authority.” Id. at 12. “The insertion in a lease of a restriction against

excessive noise or other offensive conduct is precisely for the purpose of

enabling the landlord to control that conduct. Its principal function – at

least in a multi-unit apartment lease – is to protect the right of other tenants

to the quiet enjoyment of their homes by allowing the landlord to evict a

tenant who transgresses upon that right.” Id. The Bocchini case

concluded by stating:

The traditional view rests essentially upon the notion that a landlord should not be responsible for the actions of persons over whom he has no control. In the older cases, tenants were treated much the same as trespassers or other strangers in that regard; unless the landlord in some way authorized or sanctioned the offensive conduct, he would not be held liable for it. Our concern is not with the underlying principle but rather with its application. The more recent cases dwell not so much on whether the landlord has approved the conduct of the tenant as whether he is in a position to correct or terminate it. Where, through lease provisions or otherwise, he has that ability, the thought is that he ought not to be able to escape his obligation under a covenant of quiet enjoyment by steadfastly refusing to exercise his authority. We adopt that view. It is fair and it is reasonable. The insertion in a lease of a restriction against excessive noise or other offensive conduct is precisely for the purpose of enabling the landlord to control that conduct. Its principal function -- at least in a multi-unit apartment lease -- is to protect the right of other tenants to the quiet enjoyment of their homes by allowing the landlord to evict a tenant who transgresses upon that right. Id. at 11-12 (1986).


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In the instant case, GHI had the “ability” to stop the migration of

secondhand smoke from Popovics’ home to Mr. Schuman’s home

pursuant to the Mutual Ownership Contracts it entered into with both Mr.

Schuman and the Popovics. By “steadfastly refusing to exercise [its]

authority” to abate this nuisance, GHI breached the implied covenant of

quiet enjoyment it entered into with Mr. Schuman.

1. Other Duties of Landlords

In Shields v. Wagman, 350 Md. 666, 673 (1998), the court found that

“when the owner has parted with his control, i.e., has leased the premises

to a tenant, we have held that the tenant has the burden of the proper

keeping of the premises. Where the owner, maintains control, however,

the owner may be held liable for injuries.” In Shields, 350 Md. at 675, the

court found that an owner may have liability to a tenant for personal

injuries if the owner “knew, or in the exercise of reasonable care should

have known, of the existence of a dangerous condition and failed to act

within a reasonable time thereafter to protect against injury by reason of it.”

The court also found that “a landlord who, with knowledge that a

prospective tenant has a vicious dog which will be kept on the premises,

nonetheless leases the premises to such tenant without taking reasonable

measures to protect persons who might be on the premises from being

attacked by the dog may be held liable to a person who while thereafter on


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the premises is bitten by the dog.” Id. at 683. Additionally, “[o]ne who

does not create a nuisance may be liable for some active participation in

the continuance of it or by the doing of some positive act evidencing its

adoption.” Gorman v. Sabo, 210 Md. 155, 160 (1956). By failing to take

action to stop the migration of secondhand smoke from Popovics’ home to

Mr. Schuman’s home pursuant to the “nuisance clause” of the Mutual

Ownership Contracts it entered into with both Mr. Schuman and the

Popovics, GHI effectively encouraged the Popovics to keep smoking.

C. Mr. Schuman is a third-party beneficiary of the Popovics’ Mutual Ownership Contract.

Maryland recognizes a limited exception to the strict privity

requirement, which is a third party beneficiary theory. Under this theory,

the court must determine “whether the intent to benefit the third party

actually existed, not whether there could have been an intent to benefit the

third party.” Blondell v. Littlepage, 185, Md. App. 123, 138 (2009). The

“nuisance clause” in the Mutual Ownership Contract exists for the

protection of each member’s fellow neighbors in order for the neighbors to

“fulfill their housing needs in comfortable, pleasant surroundings.” See

Plaintiff Exhibit 19 [page 1 of GHI’s Member Handbook]. Thus, when a

potential GHI member enters into GHI’s Mutual Ownership Contract, he or

she does so with the intent of providing his or her neighbors with the

benefits of contractual provisions concerning behavior in the community,


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including nuisances. Therefore, since Mr. Schuman was an intended

beneficiary of the Popovics’ Mutual Ownership Contract, he has standing

to sue the Popovics for their violation of the “nuisance clause”.

V. NEGLIGENCE

“The elements of negligence are well-established and require a

plaintiff to assert in the complaint the following: (1) that the defendant was

under a duty to protect the plaintiff from injury, (2) that the defendant

breached that duty, (3) that the plaintiff suffered actual injury or loss, and

(4) that the loss or injury proximately resulted from the defendant's breach

of the duty." Chicago Title Insurance Company v. Allfirst Bank, 394 Md.

270, 291 (2006). In the instant case, the evidence showed that the

Popovics owed a Mr. Schuman a duty to protect him from the dangers and

irritation of secondhand smoke and breached this duty by allowing their

smoke to migrate onto Mr. Schuman’s property. The evidence also shows

that GHI owed Mr. Schuman a duty to protect him from the dangers of

secondhand smoke and to enforce its rules against nuisances and

breached this duty by failing to take action to stop the Popovics from

smoking in the vicinity of Mr. Schuman’s home. As a direct and proximate

result of the Popovics’ and GHI’s breaches of their various duties, Mr.

Schuman suffered medical injuries and discomfort from the inhalation of

secondhand smoke.


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VI. THE “BUSINESS JUDGMENT RULE.”

The “business judgment rule” does not prevent the trial court from

reviewing GHI’s refusal to take action with regard to the Popovics’ smoking

since Mr. Schuman has alleged causes of action against GHI sounding in

tort and breach of contract. In Black v. Fox Hills North Community

Association, Inc., 90 Md. App. 75, 81 (1992), the court held that pursuant

to the “business judgment rule,” courts will not interfere in the internal

affairs of a corporation with only limited exceptions. Id. at 78. Fox Hills

involved the construction of a fence in a subdivision governed by a

homeowners association. In Fox Hills, Mr. and Mrs. Kupersmith

constructed a fence after receiving approval from the homeowners

association. Id. Mr. and Mrs. Black objected to the fence and sought to

have it removed by protesting to the homeowners association that the

fence violated the governing documents to which every homeowner in the

homeowners association is subject. Id. The homeowners association

declined to take any action to require the Kupersmiths to remove the

fence. Id. Mr. and Mrs. Black filed suit in the Montgomery County Circuit

Court against the Kupersmiths and the homeowners association seeking a

declaratory judgment, injunctive relief and damages. Id. The trial court

dismissed the homeowners association based on the “business judgment

rule”, but granted summary judgment in Mr. and Mrs. Black’s favor against

the Kupersmiths and found that they constructed the fence in violation of


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the governing documents. Id. at 78-81. Additionally, the Fox Hills court

found that:

When the tribunals of an organization, incorporated or unincorporated, have power to decide a disputed question their jurisdiction is exclusive, whether there is a by-law stating such decision to be final or not, and the courts cannot be invoked to review their decisions of questions coming properly before them, except in cases of fraud – which would include action unsupported by facts or otherwise arbitrary. Id. at 81.

Thus, the “business judgment rule” “precludes judicial review of a

legitimate business decision of an organization, absent fraud or bad faith.”

Id. at 82. In holding that the “business judgment rule” applied to preclude

judicial review of the homeowners association’s decision to approve the

Kupersmiths’ fence in Fox Hills, the court found that:

The decision which the association made to approve the Kupersmiths’ fence was a decision which it was authorized to make. Whether that decision was right or wrong, the decision fell within the legitimate range of the association’s discretion. As such, the association was under no obligation to proceed against the Kupersmiths to remove the fence. There was no allegation in the complaint of any fraud or bad faith. Absent fraud or bad faith, the decision to approve the fence was a business judgment with which a court will not interfere. The complaint against [the homeowners association] was properly dismissed. Id. at 83.

A. The “business judgment rule” does not preclude litigation of complaints sounding in tort or contract against a corporation. The “business judgment rule” does not preclude litigation of

complaints sounding in tort or contract against a corporation. Sadler v.

Dimensions Healthcare Corp., 378 Md. 509, 532 (2003). In Sadler, 378


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Md. at 526-27, the court found that cases involving the “business judgment

rule” seeking injunctions on due process grounds are in contrast to cases

alleging common law and statutory causes of action in contract and tort. In

Sadler, the court found that:

[t]he business judgment rule, which limit’s the court’s role in reversing the actions of a corporation, has never precluded full litigation of complaints sounding in tort or contract against the corporation. A corporation, as a private entity, may be held liable for tortious conduct and breaches of contracts, perpetrated by its officers, directors, and agents, against third parties. Id. at 532. In the instant case, Mr. Schuman filed suit against GHI on the basis

of breach of contract, the breach of the implied covenant of quiet

enjoyment and negligence due to GHI’s failure to take action to enforce the

“nuisance” clause in GHI’s Mutual Ownership Contract. Thus, the

“business judgment rule” does not apply in this case.

B. The “business judgment rule” does not preclude litigation of complaints against the corporation where the corporation has engaged in conduct that “represents a breach of their fiduciary obligations.” The “business judgment rule” does not preclude litigation of

complaints against the corporation where the corporation has engaged in

conduct that “represents a breach of their fiduciary obligations.” In

Mountain Manor Realty, Inc. v. Buccheri, 55 Md. App. 185, 195 (1983), the

court found an exception to the business judgment rule where a

corporation’s board of directors has engaged in conduct that “represents a


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breach of their fiduciary obligations.” In the instant case, GHI, as Mr.

Schuman’s landlord, owed fiduciary duties based upon both tort and

contract theories, to Mr. Schuman to enforce its Mutual Ownership

Contract’s “nuisance” clause by taking steps to prevent secondhand

smoke from migrating from the Popovics’ home into Mr. Schuman’s home.

In Parklawn, Inc. v. Nee, 243 Md. 249, 254 (1966), the court stated that

Section 837 (a) and (b) of the Restatement [Torts] [concerning the liability

of lessors of land for trespasses caused by activities carried on upon the

leased land] represents the Maryland view on this subject. As quoted in

Parklawn, Inc. v. Nee, 243 Md. 249, 254 (1966), Section 837 (a) and (b)

states:

A lessor of land is liable for an invasion of another’s interest in the use and enjoyment of other land, occurring while the lessor continues as owner of the land, which is caused by an activity carried on upon the leased land while the lease continues, if the lessor would be liable under the rule [involving non-trespassory invasions] had the activity been carried on by him, and if (a) at the time when the lease was made, renewed or amended, the lessor consented to the carrying on of the activity, or knew that it would be carried on [emphasis in original]” and “(b) the activity, as the lessor should have known, necessarily [emphasis in original] involved or was already causing such an invasion.

In the instant case, GHI had actual knowledge that the Popovics’ smoking

was infringing on Mr. Schuman’s rights to be free from the damaging

effects of secondhand smoke, but nevertheless, failed to use its powers

set forth in the Mutual Ownership Contract to stop the Popovics from


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smoking. By failing to take action to prevent the Popovics’ secondhand

smoke from migrating into Mr. Schuman’s home, GHI consented to the

carrying on of this activity.

VII. DECLARATORY JUDGMENT

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.” Md. Code §§ 3-402 (Courts and

Judicial Proceedings article). This act “shall be liberally construed and

administered.” Id. Pursuant to Md. Code §§ 3-403 (Courts and Judicial

Proceedings article), the 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


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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

relation, status, right, or privilege and this is challenged or denied by an

adversary party, who also has or asserts a concrete interest in it.” Md.

Code §§ 3-409 (a) (Courts and Judicial Proceedings article) states that “[a]

party may obtain a declaratory judgment or decree notwithstanding a

concurrent common-law, equitable, or extraordinary legal remedy, whether

or not recognized or regulated by statute.” Md. Code §§ 3-411 (Courts and

Judicial Proceedings article) states that “[t]he declaration may be

affirmative or negative in form and effect and has the force and effect of a

final judgment or decree.”

Mr. Schuman’s complaint for declaratory judgment should be

granted, on the basis that the Popovics’ practice of smoking cigarettes in

their home and/or the adjacent patio is “objectionable conduct” that

constitutes a “nuisance” and causes Mr. Schuman “annoyance,”

“inconvenience,” or “damage” as these terms are defined in GHI’s Mutual

Ownership Contract.


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VIII. INJUNCTION

“A landowner may obtain an injunction against a nuisance on

adjoining land where it is shown that the injury is of such a character as to

materially diminish the value of his property and seriously interfere with the

ordinary comfort and enjoyment of it.” Leatherbury v. Gaylord Fuel Corp.,

276 Md. 367, 377 (1975). In Bishop’s Processing Company v. Davis, 213

Md. 465 (1957), the plaintiffs filed suit to enjoin the operator of a

processing plant from maintaining and operating a processing plant due to

the fact that odors emanating from the plant interfered with the plaintiffs’

rightful use and enjoyment of their property located in the area of the

processing plant. The plaintiffs in Bishop’s Processing claimed that “the

process used by the Company in manufacturing its products, when not

curbed, produces a shocking and nauseating stench and odor which

permeates the surrounding atmosphere for more than a mile and that the

stench is so bad that even though the doors and windows of the homes of

persons living in the neighborhood surrounding the plant are closed, it

comes into the homes causing throat irritations, severe headaches, loss of

appetite, nausea, regurgitation and in other ways interferes with the

comfortable enjoyment of their homes.” Id. at 470. The court in Bishop’s

Processing held that “We think that whether the conduct of the [processing

plant’s] business be determined as constituting a public or a private

nuisance, the [homeowners] have shown sufficient discomfort to


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themselves and injury to their properties to entitle them to injunctive relief.

We believe the evidence justifies a finding that the odors complained of

caused physical discomfort and annoyance to those of ordinary tastes,

sensibilities and habits; and that the injury to the [homeowners’] properties

was of such a character as to diminish materially their value as dwellings,

and to interfere seriously with the ordinary comfort and enjoyment thereof.”

Id. at 474.

IX. “CONTINUIOUS VIOLATION” EXCEPTION TO THE STATUTE OF LIMITATIONS.

The Maryland Court of Appeals has recognized a “continuing harm”

or “continuous violation” doctrine “which tolls the statute of limitation in

cases where there are continuous violations.” MacBride v. Pishvaian, 402

Md. 572, 584 (2007). “Under this theory, violations that are continuing in

nature are not barred by the statute of limitations merely because one or

more of them occurred earlier in time. Id.

X. DAMAGES.

“Where there is a non-trespassory invasion of rights in real property

occupied by the owner as a home, consisting of a temporary private

nuisance, the measure of damages is the diminution in the value of the use

of the property as a home. The elements to be considered in the loss of

the value of the use include the ordinary use and enjoyment of the home,

and may also include sickness or ill health of those in the home caused by


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the nuisance.” Gorman v. Sabo, 210 Md. 155, 162 (1956). “A plaintiff who

occupies a home is not limited to the recovery of the diminished rental

value of it, but may be compensated for any actual inconvenience and

physical discomfort which materially affected the comfortable and healthful

enjoyment and occupancy of the home.” Id.

A. The term “‘harm to property’ should be construed broadly to include intangible tortious interferences of plaintiffs’ use and enjoyment of their properties.

The term “‘harm to property’ should be construed broadly to include

intangible tortious interferences of plaintiffs’ use and enjoyment of their

properties.” Exxon Corporation v Yarema, 69 Md. App. 124, 152 (1986).

In Yarema, the court stated that the term “interest in use and enjoyment” is

not defined as merely physical or intangible invasions of land, but:

also comprehends the pleasure, comfort and enjoyment [emphasis in original] that a person normally derives from the occupancy of land. Freedom from discomfort and annoyance [emphasis in original] while using land is often as important to a person as freedom from physical interruption or freedom from detrimental change in the physical condition of the land itself. Id. at 147. B. As the owner of his home, Mr. Schuman is competent to testify as to the value of his home without additional expert testimony.

“[A]n owner of property is prima facie competent to express his

opinion as to its value without qualification as an expert.” Brown v. Brown,

195 Md. App. 72, 119 (2010). This is because “an owner of property is

presumed to be qualified to testify as to his opinion of the value of property


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he owns; not because he has title, but on the basis that ordinarily the

property owner knows his property intimately and is familiar with its value.”

Id. Therefore, as the owner of his home, Mr. Schuman is competent to

testify as to the value of his home without additional expert testimony.

C. The health risks that exposure to secondhand smoke clearly poses nevertheless justifies the entry of an injunction prohibiting the Popovics from smoking in their home or on their property.

The mere potential for injury alone is enough to enjoin a nuisance

affecting the use and enjoyment of one’s property. In Mayor and City

Council of Baltimore v. The Fairfield Improvement Company, 87 Md. 352,

359 (1898), the Court of Appeals affirmed the trial court’s decree enjoining

the City of Baltimore’s placement of an “unfortunate woman afflicted with

leprosy” in a neighborhood based on an “apprehended injury” to the owner

of adjoining property. Specifically, the Fairfield Improvement Company

court held that:

the record leaves no room for doubt. That the disease is contagious no one seems to deny. Its liability to contaminate others is the element that makes its introduction into a community a nuisance, and when it is conceded that the purpose is to place this woman, having a fully developed and far advanced attack of leprosy, in charge of a laborer and his wife, who have no experience in such a case, and who have several small children in their family, the danger of spreading the contagion is perfectly obvious. Id. 365-66.


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Almost one hundred years after the decision in Fairfield Improvement, the

Court of Special Appeals remarked on this case in Exxon Corporation v

Yarema, 69 Md. App. 124, 149-50 (1986) by stating:

In issuing the injunction against the City, the Court imposed no threshold requirement as to the physical invasion onto plaintiffs’ land. The principal concern of the Court was not whether the leprosy had in fact spread to plaintiffs’ property, but whether there existed a threat of harm to plaintiffs’ property and person.

In Yarema, 69 Md. App. at 150-51, the court also cited Hendrickson v.

Standard Oil Company, 126 Md. 577 (1915) for that court’s holding that the

“storage of large amounts of highly explosive and volatile substances” near

the plaintiff’s property was a nuisance “[b]ased on the threat of future

harm” [emphasis in original] “[n]otwithstanding the fact that there was no

physical invasion” since “these dangerous conditions interfered with

plaintiff’s reasonable use and enjoyment of his property.” Yarema, 69 Md.

App. at 150-51. In addition, the Yarema court also noted Fairfield

Improvement, 87 Md. 352 and observed that:

[i]n issuing the injunction against the City, the Court imposed no threshold requirement as to the physical invasion onto plaintiffs’ land. The principal concern of the Court was not whether the leprosy had in fact spread to plaintiffs’ property, but whether there existed a threat of harm to plaintiffs’ property and person. Yarema, 69 Md. App. at 149-50.

In the instant case, the testimony presented by Mr. Schuman’s

secondhand smoke expert, Mr. Repace, and the findings of the United

States Surgeon General clearly establish the dangers of secondhand


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smoke, both in terms of immediate medical effects as well as the risk of

heart attacks and cancer. Mr. Schuman presented extensive evidence as

to the inconveniences and annoyances as well as the dry eyes, nose and

throat he suffered as a result of the Popovics’ smoking. Mr. Schuman did

not present any evidence that he had a heart attack or developed cancer

as a result of the Popovics’ smoking, but does not need to do so in order to

receive the benefit of an injunction, since the mere risk of such serious

health effects are sufficient to enjoin the nuisance created by the Popovics’

smoking. A finding that Mr. Schuman would need to suffer a major health

event from exposure to the Popovics’ smoking before an injunction is

issued is not required under Maryland law as the law is clear that Mr.

Schuman does not need to prove that he has had a suffered a heart attack

or developed cancer as a result of the Popovics’ smoking, only that there is

a significant risk of such “unfavorable health conditions.” In fact, the

purpose of the injunction Mr. Schuman seeks is to prevent him from

suffering a major health event from exposure to the Popovics’ smoking.

Otherwise, courts would not be able to order the owner of a dangerous dog

to build a fence around his or her property until after the dog bit someone.

Surely, this is not the state of the law in Maryland. Additionally, in Norfolk

& Western Railway Company v. Ayers, 538 U.S. 135, 157 (2003), the court

held that an asbestosis sufferer may seek compensation for “fear of

cancer” if the fear is “genuine and serious.” As Mr. Schuman suffers from


137

exposure to secondhand smoke, his “genuine and serious” fear of cancer

and a heart attack supports his entitlement to a permanent injunction

prohibiting the Popovics from smoking in their home or on their property.

D. The “Third-Party Litigation” Exception to the “American Rule” on Attorney’s Fees.

In Nova Research, Inc. v. Penske Truck Leasing Co., 405 Md. 435,

445 (2008), the court stated:

As concerns the grant of attorney fees, Maryland follows the common law ‘American Rule,’ which states that, generally, a prevailing party is not awarded attorney's fees unless (1) the parties to a contract have an agreement to that effect, (2) there is a statute that allows the imposition of such fees, (3) the wrongful conduct of a defendant forces a plaintiff into litigation with a third party, or (4) a plaintiff is forced to defend against a malicious prosecution.

This “third-party litigation” exception to the “American Rule” on attorney’s

fees, allows the Court to award Mr. Schuman his legal fees and expenses

incurred in the prosecution of his case against the Popovics because GHI’s

refusal to take action to prevent the migration of secondhand smoke from

the Popovics’ home and patio to Mr. Schuman’s home and patio “forced

Mr. Schuman into litigation with the Popovics.” Therefore, Mr. Schuman is

awarded his attorneys fees and costs in bringing his action against the

Popovics.


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Findings of Fact and Conclusions of Law

Based upon the foregoing legal principles involved in this case, the

Court makes the following findings of fact and conclusions of law:

Physical Layout of Schuman and Popovic Homes

1. Mr. Schuman lives next-door to the Popovics in an eight home row

of townhouses in GHI’s cooperative community.

2. Sometime between Fall 2009 and Summer 2010, Mrs. Popovic was

debilitated by a brain tumor that forced her to stop smoking.

3. Until Mrs. Popovic was diagnosed with the brain tumor, both Mr. and

Mrs. Popovic smoked cigarettes inside their home and on their patio, and

after this time, neither Mr. or Mrs. Popovic smoked inside their home

anymore, but Mr. Popovic began smoking exclusively on his patio.

4. The distance from where Mr. Popovic typically smokes on his patio

to the window in Mr. Schuman’s dining room is 27 feet and to the window

in Mr. Schuman’s living room is 44 feet.

5. At a distance of 44 feet, measurable amounts of secondhand smoke

traveled from Mr. Popovic’s patio to Mr. Schuman’s open window in his

living room.

6. Since there is a grassy common area directly behind the Schuman

and Popovic homes, Mr. Popovic could smoke in this area and

secondhand smoke would not affect Mr. Schuman.


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GHI’s Mutual Ownership Contract

7. GHI has contractual relationships with all of its members, including

Mr. Schuman and the Popovics as evidenced by the Mutual Ownership

Contract.

8. GHI’s “Mutual Ownership Contract” contains a “nuisance” clause that

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 agreed 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. [emphasis added].

Dangers of Secondhand Smoke

9. The Popovics and GHI concede that secondhand smoke poses a

danger to Mr. Schuman’s health.


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The Migration of Secondhand Smoke into Mr. Schuman’s Home

10. The Popovics and GHI concede that secondhand smoke migrated

from the inside of the Popovics’ home to the inside of the Schuman home

when the Popovics smoked inside their home.

11. The Popovics and GHI concede that secondhand smoke migrates

into Mr. Schuman’s home via open windows when Mr. Popovic smokes on

his patio.

GHI’s Failure to Take Action to Enforce the “Nuisance Clause” of the Popovics’ Mutual Ownership Contract

12. GHI admits that it failed to take action to enforce the “nuisance

clause” of the Popovics’ Mutual Ownership Clause during the adjudication

of Mr. Schuman’s Member Complaint in 2009.

13. GHI’s Board’s failure to “spend a lot of time talking about whether a

nuisance was present or not” when discussing the Schuman/Popovic

matter in 2009 since “it wasn’t the most pressing” issue evidences an

egregious violation of the Board’s duty to resolve Mr. Schuman’s Member

Complaint because the primary function of the Board is to determine if a

member violated one of GHI’s rules and the Board has no “more pressing

issue” than that when resolving a Member Complaint pursuant to the

procedures set forth in the Member Handbook. See Plaintiff Exhibit 19



141

14. As stated in Green v. Greenbelt Homes, Inc., 232 Md. 496, 504

(1963), GHI had the ability to enforce the “nuisance clause” of the

Popovics’ Mutual Ownership Contract, and under the holding of Bocchini

v. Gorn Management Company, 69 Md. App. 1, 12 (1986), GHI had the

obligation to enforce the “nuisance clause.”

15. Ms. Lewis’ testimony that “[i]t’s between [Mr. Schuman] and [the

Popovics] to come to some conclusion of this problem” ignores GHI’s

responsibility to take action with regard to the Popovics’ smoking. See

Lewis Testimony, 4-205.

16. Mr. Boswell’s belief that “direct conversation and continued

conversation with Mr. and Mrs. Popovic was probably in [Mr. Schuman’s]

best interest” since “discussion among members is how GHI works” fails to

recognize the duties that GHI owes to Mr. Schuman as his landlord. See


17. Mr. Boswell’s statement that the Board hoped that Mr. Schuman and

the Popovics would “consider the problem more fully and be willing to be

part of the solution,” while, at the same time acknowledging that the parties

were “pretty well entrenched on both sides” is bizarre. See Boswell


18. Mr. Boswell’s further testimony that “[i]n GHI, there are times when

members cannot resolve the issue between themselves, and it is not an

issue that is handled by the Board, by the cooperative as a whole, [it is]


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simply an issue between members. If they cannot resolve it, it’s

sometimes best for one of the members to move out,” highlights the clear

evasion of duties GHI owed to Mr. Schuman as his landlord. See Boswell

Testimony, 5-63.5

19. Thus, the foregoing facts clearly show that GHI’s steadfast refusal to

adjudicate Mr. Schuman’s Member Complaint against the Popovics is

reprehensible.

Nuisance

20. The “nuisance clause” in GHI’s Mutual Ownership Contract is

broader than the definition found in Maryland common law. Therefore, Mr.

Schuman’s burden to prove a nuisance is lower.

21. Even if the burden of proof were not lower, the Popovics’ smoking is

a nuisance to Mr. Schuman under the higher standard stated in Maryland

common law.

22. Mr. Schuman’s complaints of secondhand smoke infiltration in his

home is corroborated by Mr. Repace, Ms. Ipolito and Mr. and Mrs.

Hammett, who have been all been present in Mr. Schuman’s home on

many occasions and have personally smelled secondhand smoke in Mr.

Schuman’s home.

5 The Court previously found GHI’s suggestion that Mr. Schuman “could pack up and move” is “ludicrous, if not outright offensive, under the circumstances.” See September 1, 2010 order on Mr. Schuman’s motion for a preliminary injunction.


143

23. As proven by Mr. Repace’s various studies, secondhand smoke from

the Popovics’ cigarettes infiltrated the inside of both Mr. Schuman’s and

Ms. Ipolito’s homes when the Popovics were smoking inside their home

and prevented Mr. Schuman and Ms. Ipolito from using their patios or

opening their windows when the Popovics were smoking outside on their

patio.

24. Mr. Schuman, Mr. Repace, Ms. Ipolito and Mr. and Mrs. Hammett

are all people of ordinary sensibilities, tastes and habits.

25. The Popovics’ smoking has caused actual physical discomfort to Mr.

Schuman, Mr. Repace, the Hammetts and Ms. Ipolito.

26. The Popovics’ smoking has caused Mr. Schuman and Ms. Ipolito to

suffer medical injuries, including trouble breathing and congested sinuses.

27. The Court makes no finding with regard to Mr. Schuman’s possible

future injuries such as cancer or heart disease since Mr. Schuman did not

produce any evidence that he has cancer or heart disease, however, the

proven risks of such serious health consequences are nevertheless

sufficient to support a permanent injunction against the Popovics’ smoking

in their home or on their patio.

28. While Mr. Schuman may not recover monetary damages at this time

for diseases that may develop in the future due to the Popovics’ smoking,

this decision does not prevent his claim for monetary damages in the


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future if future diseases are “separate and distinct” from the medical

injuries that he has claimed in this action.

29. While expert testimony is not required to prove a nuisance, Mr.

Schuman’s medical injuries were proven through testimony, including that

of Dr. Munzer, which corroborated Mr. Schuman’s claims.

30. The Popovics’ smoking has caused significant actual physical

discomfort to both Mr. Schuman and Ms. Ipolito in the legitimate enjoyment

of their reasonable rights to use and occupy their homes.

31. Because of the undisputable dangers of secondhand smoke, the fair

market value of Mr. Schuman’s home is lower than if the Popovics were

non-smokers since people of ordinary sensibilities, tastes and habits would

not want to live in a home where secondhand smoke routinely migrated

into that home or attached patio.

32. The real estate market with regard to homes in Prince George’s

County is significantly lower today than when the problem with the

Popovics’ smoking “resurfaced” in 2008, and therefore, should Mr.

Schuman sell his home today, he would not receive as high a sales price

for the home as he would have in 2008, or if he sold at a future date of his

chosing.

33. The injuries suffered by Mr. Schuman and Ms. Ipolito from the

Popovics’ smoking are of such a character as to diminish materially the

value of their property as a dwelling and seriously interferes with their


145

ordinary comfort and enjoyment of their property because Mr. Schuman

and Ms. Ipolito both have the right to occupy and use their properties free

from the smell and dangers of secondhand smoke.

34. The level and frequency of secondhand smoke migrating into Mr.

Schuman’s and Ms. Ipolito’s homes is neither trivial nor infrequent and is

far in excess of the level and frequency of secondhand smoke that an

ordinary person can expect from his or her next-door neighbor.

35. The fact that Mr. Schuman did not vacate his property is immaterial

in an analysis of whether the Popovics’ smoking is a nuisance since Mr.

Schuman is under no legal duty to vacate his property when faced with the

migration of secondhand smoke from the Popovics’ home or patio.

36. The Popovics’ smoking is “objectionable conduct,” and thus, is a

“nuisance’ as those terms are defined in GHI’s Mutual Ownership Contract

as secondhand smoke from the Popovics’ cigarettes annoys,

inconveniences and damages Mr. Schuman and Ms. Ipolito since the

secondhand smoke migrates into both Mr. Schuman’s and Ms. Ipolito’s

homes when the Popovics were smoking inside their home and prevented

Mr. Schuman and Ms. Ipolito from using their patios or opening their

windows when the Popovics were smoking outside her home.

37. The Court could support the foregoing findings based merely on the

unpleasant smell of secondhand smoke, but the undisputable fact that


146

secondhand smoke is dangerous and unhealthy, makes these findings

even stronger.

38. Even though smoking is a legal activity, the Popovics have no

general constitutional or statutory right to smoke and the Court may order

the Popovics to refrain from smoking inside their home or at a distance

closer than 75 feet from the Schuman home because this activity is a

nuisance under GHI’s Mutual Ownership Contract and Maryland common

law.

39. Because there is no risk-free level of secondhand smoke,

secondhand smoke is a nuisance per se since secondhand smoke is a

nuisance at all times and under any circumstances regardless of location

or surroundings.

40. For the foregoing reasons, the Popovics’ smoking is a nuisance with

regard to Mr. Schuman, both under GHI’s Mutual Ownership Contract and

under Maryland common law.

Trespass

41. The migration of secondhand smoke from the Popovics’ home and

patio resulted in a trespass by the Popovics into Mr. Schuman’s home and

onto his patio since the Popovics’ act of smoking resulted in an intentional

or a negligent intrusion upon Mr. Schuman’s property.


147

Breach of Contract (against the Popovics) under a Third-Party Beneficiary Theory

42. The Popovics’ Mutual Ownership Contract obligated them to abide

by GHI’s rules and regulations, including the “nuisance clause”.

43. The “nuisance clause” in the Mutual Ownership Contract exists for

the protection of each member’s fellow neighbors in order for the

neighbors to “fulfill their housing needs in comfortable, pleasant

surroundings.” See Plaintiff Exhibit 19 [page 1 of GHI’s Member

Handbook].

44. Thus, when a potential GHI member enters into the Mutual

Ownership Contract, he or she does so with the intent of providing his or

her neighbors with the benefit of the contractual provisions concerning

behavior in the community, including nuisances.

45. Therefore, since Mr. Schuman was an intended beneficiary of the

Popovics’ Mutual Ownership Contract, he has standing to sue the

Popovics for their violation of the “nuisance clause”.

46. Thus, the Popovics’ smoking was a nuisance with regard to Mr.

Schuman, both under GHI’s Mutual Ownership Contract and under

Maryland common law, and thus, the Popovics are liable to Mr. Schuman

under a breach of contract/third-party beneficiary theory.


148

Negligence (against the Popovics)

47. Both under GHI’s Mutual Ownership Contract and under Maryland

common law, the Popovics owed Mr. Schuman a duty to protect him from

injury.

48. The Popovics understood that secondhand smoke was harmful to

Mr. Schuman and that secondhand smoke was migrating from their home

and patio into Mr. Schuman’s home and patio, yet they continued to smoke

inside their home and on their patio, thus, breaching their duty to Mr.

Schuman to protect him from injury.

49. As previously stated under the nuisance section of these findings of

fact and conclusions of law, Mr. Schuman suffered actual injuries and

damages as a direct and proximate result of the Popovics’ breach of their

duty to Mr. Schuman to protect him from injury.

50. Therefore, the Popovics are liable to Mr. Schuman under a

negligence theory.

Declaratory Judgment and Permanent Injunction

51. Since GHI’s Mutual Ownership Contract clearly prohibits GHI

members from engaging in activities that result in a nuisance to other

members, and the Court has found that the Popovics’ smoking was a

nuisance with regard to Mr. Schuman, both under GHI’s Mutual Ownership

Contract and under Maryland common law, the Court enters a declaratory

judgment in Mr. Schuman’s favor against the Popovics holding that the


149

Popovics’ smoking in their home and on their patio is a nuisance with

regard to Mr. Schuman, under GHI’s Mutual Ownership Contract.

52. Additionally, since the Popovics’ smoking in their home and on their

patio causes Mr. Schuman damages and injuries that seriously interferes

with Mr. Schuman’s ordinary comfort and enjoyment of his property, the

Court enters a permanent injunction in Mr. Schuman’s favor and against

the Popovics ordering them to refrain from smoking in their home and

within 75 feet of Mr. Schuman’s windows.

Breach of Contract (against GHI) under a Breach of the Implied Covenant of Quiet Enjoyment Theory

53. GHI is Mr. Schuman’s landlord and Mr. Schuman is GHI’s tenant

under Mr. Schuman’s Mutual Ownership Contract.

54. As succinctly stated in Green v. Greenbelt Homes, Inc., 232 Md.

496, 503-04 (1963), GHI has the ability to terminate a member’s right to

live in their home where the member violates the Mutual Ownership

Contract’s “nuisance clause”.

55. Therefore, GHI clearly had the power to control the Popovics’

behavior and secure the Popovics’ compliance with the “nuisance clause”

in the Popovics’ Mutual Ownership Contract by threatening the exercise of

GHI’s right to terminate the Popovics’ right to live in their home and by

exercising this right if the Popovics ignore this threat.


150

56. GHI’s insertion of the “nuisance clause” in its Mutual Ownership

Contract was made for the purpose of allowing GHI to control the conduct

of members who violate the “nuisance clause”. See Bocchini v. Gorn

Management Company, 69 Md. App. 1, 12 (1986).

57. The principal function of the “nuisance clause” is to protect the rights

of GHI members, including Mr. Schuman, to the quiet enjoyment of their

homes by allowing GHI to evict a tenant who transgresses upon that right.

Id.

58. GHI had no legitimate reason to refrain from exercising its right to

control the Popovics’ behavior.

59. Because GHI’s Mutual Ownership Contract included a “nuisance

clause” and the Popovics’ smoking in their home and on their patio is a

nuisance with regard to Mr. Schuman, both under GHI’s Mutual Ownership

Contract, GHI’s unjustified refusal to enforce that clause, ratified and

encouraged the Popovics’ tortious behavior and resulted in GHI’s breach

of the implied covenant of quiet enjoyment contained in Mr. Schuman’s

Mutual Ownership Contract.

Negligence (against GHI)

60. As previously stated under the breach of contract under a breach of

the implied covenant of quiet enjoyment theory section of these findings of

fact and conclusions of law, GHI owed Mr. Schuman a duty to protect him


151

from injury from the Popovics’ secondhand smoke by enforcing the

“nuisance clause” of the Popovic’s Mutual Ownership Contract.

61. GHI understood that secondhand smoke was harmful to Mr.

Schuman and that secondhand smoke was migrating from the Popovics’

home and patio into Mr. Schuman’s home and patio, yet GHI refused,

without justification to enforce the “nuisance clause” of the Popovic’s

Mutual Ownership Contract, thus, breaching their duty to Mr. Schuman to

protect him from injury.

62. As previously stated under the nuisance section of these findings of

fact and conclusions of law, Mr. Schuman suffered actual injuries and

damages as a direct and proximate result of the Popovics’ smoking in their

home and on their patio, and thus, Mr. Schuman suffered actual injuries

and damages as a direct and proximate result of GHI’s unjustified refusal

to enforce the “nuisance clause” of the Popovic’s Mutual Ownership

Contract.

63. Therefore, GHI is liable to Mr. Schuman under a negligence theory.

“Continuous Violation” Exception to the Statute of Limitations

64. Mr. Schuman and Ms. Ipolito made complaints against the Popovics

regarding the migration of secondhand smoke into their homes in the late

1990’s.


152

65. Mr. Schuman’s testimony that the problem “went away” and “came

back with a vengeance in 2008 or so” is supported by Ms. Ipolito, and is

credible.

66. Therefore, the Court finds that Mr. Schuman’s cause of action

against the Popovics did not arise until 2008 at the earliest, and therefore,

Mr. Schuman filed his complaint within the statute of limitations.

67. Even if Mr. Schuman had a cause of action against the Popovics in

the 1990s, the “continuous violation” exception to the statute of limitations

applies in this case since the Popovics’ conduct is “continuing.” See

MacBride v. Pishvaian, 402 Md. 572, 584 (2007).

The “Business Judgment Rule”

68. The “business judgment rule” does not apply in this case to

immunize GHI from liability since this rule does not apply with regard to the

litigation of complaints against a corporation sounding in tort or contract.

See Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 526-27 (2003).

69. Therefore, since Mr. Schuman has set forth facts supporting a

judgment against GHI on breach of contract and negligence theories, the

“business judgment rule” does not apply to immunize GHI from liability.

GHI’s Claim that Mr. Schuman Failed to “Take the Issue to the Membership”

70. GHI claims that Mr. Schuman failed to exhaust his administrative

remedies before filing the lawsuit at issue in this case by failing to “take the


153

issue to the membership” is not supported by any provision in GHI’s

governing documents.

71. While GHI claims that Mr. Schuman could have obtained signatures

of GHI members and placed his dispute with the Popovics before the

general membership, it failed to show a single contractual provision

requiring Mr. Schuman to take such action.

72. GHI’s Board, as Mr. Schuman’s landlord, clearly owed Mr. Schuman

duties to enforce the “nuisance clause” in GHI’s Mutual Ownership

Contract; therefore, it is legally immaterial whether Mr. Schuman could

have “taken the issue to the membership,” even if he had the legal option

to do so.

73. Additionally, GHI admits that in the sixty-plus years that GHI has

existed, no member has ever brought a personal grievance against

another GHI member before the entire membership.

74. Moreover, when GHI has a claim against member who does not pay

his or her membership fees, GHI does not “take the issue to the

membership,” but rather sues directly in court to obtain the fees.

75. The intent of GHI’s Member Complaint Panel is to allow members to

bring grievances against other members to GHI with the goal of having

GHI rule on the grievance.

76. The lack of a mention of a possibility of “taking an issue to the

membership” in the section of GHI’s Member Handbook concerning the


154

Member Complaint Procedures clearly shows that Mr. Schuman had no

such option. See Plaintiff Exhibit 19 [pages 74-79 of GHI’s Member

Handbook].

77. Additionally, GHI’s letters to Mr. Schuman prove that he had

exhausted his administrative remedies. See Plaintiff Exhibit 35 [GHI’s

letter to Mr. Schuman dated October 8, 2009]; Plaintiff Exhibit 39 [GHI’s

letter to Mr. Schuman dated December 7, 2009].

GHI’s Claim that Mr. Schuman’s Renovations Caused a Break in the Seals Placed by GHI in the 1990s and

Resulted in Mr. Schuman’s Injuries

78. Mr. Gervasi’s testimony that he performed the renovations on Mr.

Schuman’s home with the utmost degree of care and with the intent to seal

Mr. Schuman’s walls to the greatest extent possible to protect Mr.

Schuman from secondhand smoke migrating through the

Schuman/Popovic wall, along with Mr. Repace’s testimony that it is not

possible to completely seal all of the areas in or around common walls

leads to the inescapable conclusion that Mr. Schuman’s renovations did

not break any seals on the common wall between the Schuman and

Popovic homes.

79. Additionally, the Court previously found that GHI’s claim that Mr.

Schuman’s renovations caused his injury is “ludicrous, if not outright

offensive, under the circumstances.” See order on Mr. Schuman’s motion

for a preliminary injunction.


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Damages

80. The Court orders Darko Popovic, Svetlana Popovic and Greenbelt

Homes, Inc., jointly and severally, to pay David Schuman the sum of

(amount to be determined by the Court).

81. This monetary award takes into consideration the physical

discomfort, annoyance, inconvenience, medical injuries and costs Mr.

Schuman suffered as a direct and proximate result of the migration of

secondhand smoke from the Popovics’ home and patio to Mr. Schuman’s

home and patio.

82. This monetary award also includes the material diminution in value

of Mr. Schuman’s home as a dwelling place due to the Popovics’ smoking

habits.

83. Additionally, this monetary award takes into consideration the fair

market value of the legal services and expenses that Mr. Schuman

incurred in suing the Popovics because GHI’s refusal to take action to

prevent the migration of secondhand smoke from the Popovics’ home and

patio to Mr. Schuman’s home and patio “forced Mr. Schuman into litigation

with the Popovics.”

84. Thus, the monetary award of attorneys’ fees against GHI is not

pursuant to an exception to the “American Rule” on attorneys’ fees awards,

but rather is a direct measure of damages that Mr. Schuman suffered due















































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