Short-Term Secondhand Smoke Case Goes To Jury

March 21, 2003 ( - A jury will decide if an employer's failure to provide a smoke-free work environment, if even in the short-term, caused an asthma aggravating condition.

Manhattan Supreme Court Justice Louis York ruled since there is a general consensus among the scientific community that secondhand smoke can cause sinusitis and thus aggravate a pre-existing asthma condition, it was up to a jury to decide, based on testimony from competing experts, whether six weeks of secondhand smoke was sufficient exposure to cause injury, according to a report by the New York Law Journal.

Attorneys for plaintiff Victoria Gallegos said the ruling in Gallegos v Elite Model Management Corp. marks the first time a secondhand smoke suit with such a short period of exposure will be herd.   Gallegos’s suit alleges that Elite violated New York City Human Rights Law and the Smoke-Free Air Act by failing to provide a smoke-free workplace, creating a hostile workplace and discriminating against her in firing her.

Smoke Screen

Gallegos worked as a sales director for Elite from late September 1999 until being fired in early November.   In the lawsuit, Gallegos contends she was constantly exposed to secondhand smoke at the agency, where agents and models smoked in the open area where she worked. Gallegos, who has asthma and is sensitive to smoke, alleges she had told Elite that she would not take the job unless the agency did something about the secondhand smoke in its office.

Elite assured her that changes would be made to correct the open area smoking.   However, when Gallegos began her employment, the smoking continued. Gallegos claims the smoke-filled environment the contraction of chronic sinusitis, with symptoms that included wheezing, shortness of breath, nausea and coughing up blood.   She said she repeatedly complained, but nothing was done about the smoking. Further, Gallegos contents she was admonished and told not to be a “fanatic,” which eventual led to her termination.

The agency contested the accusation and argued Gallegos was fired because she was not up to the job. Additionally, the agency challenged the validity of expert testimony proposed by Gallegos, saying there was no scientific evidence supporting a claim that brief exposure to second-hand smoke could cause sinusitis. Elite asked York to preclude the testimony.

Blowin’ Smoke

York denied Elite’s request, declining to hold a hearing under Frye v US to determine if such testimony was generally accepted in the scientific community.   “The traditional approach in Frye hearing cases is to hold an in limine hearing at the start of the trial or sometimes even during the trial,” the judge wrote. “That is a far less productive way of proceeding and is a waste of the jury’s time as it sits and waits while the hearing hurries along and the judge’s equally hurried decision is made without sufficient time to study and reflect.”

In his opinion York said whether Gallegos was exposed to enough smoke to cause injury was not a question of law but one for a jury and noted his preference for hearing motions on scientific evidence far in advance of a trial   “Courts have faced such obstacles in asbestos exposure, but that has not prevented many juries from determining that asbestos caused such diseases as asbestosis, lung cancer and mesothelioma,” the judge wrote.

The case is Gallegos v. Elite Model Management Corp., 120577/00.