A woman sued her former employer and others for damages she allegedly sustained as a result of their failure to accommodate her acute sensitivity to tobacco smoke and the consequential aggravation of her existing asthma condition.  She worked at the former employer’s company for about six weeks, enduring constant exposure to secondhand smoke over the entire workday for that entire time.  She alleged that the exposure caused her to develop acute sinusitis, which significantly aggravated her asthma condition.  The former employer filed a motion to preclude expert testimony on the issue of establishing the causal relationship between the secondhand smoke, the sinusitis and the asthma condition, claiming that there is a lack of scientific evidence that such a short exposure could have caused the sinusitis.  “Because the Court concludes that a substantial portion of the scientific and medical community has concluded that these two conditions exist in a cause and effect relationship, the motion is denied.”   See Perrotta, T., “Jury May Hear Second-Hand Smoke Experts, Woman Alleges Harm After Just Six Weeks,” New York Law Journal, March 21, 2003, 1.

On April 25, 2003, a Manhattan jury found that the defendant provided a hostile working environment to Ms. Gallegos by firing her after she complained about the secondhand smoke.  See “Jury Faults Model Agency in Smoking Case,” wnbc.com, April 26, 2003.  On May 14, 2003, the jury returned a verdict in the amount of $5.2 million.  See Gregorian, D., “Smoked-Out Model Exec Wants $4.6M,” New York Post, May 14, 2003; Gregorian, D., “Model Firm Is Smoked for $5M,” New York Post, May 15, 2003;  Peterson, H., “Modeling Firm Hit for $5M,” New York Daily News, May 15, 2003; Freifield, K., “Jury Awards $5 Million in Anti-Smoking Suit,” Newsday, May 15, 2003, A16 and Perrotta, T., “Jury Fixing Eyed in Modeling Agency Suit,” New York Law Journal, January 8, 2004.

On April 29, 2003, a stay was granted at 759 N.Y.S. 2d 319, 2003 N.Y. App. Div. LEXIS 4911 on condition that the appeal was perfected for the September 2003 term.  On August 13, 2003, the court, at 768 N.Y.S. 2d 134, 2003 N.Y. Misc. LEXIS 1099, granted a motion compelling defendants to appear for examinations about assets and to enjoin any disposition of them.

On January 6, 2004, the Supreme Court of New York, New York County, at 2004 NY Slip OP 50000U, 2004 N.Y. Misc. LEXIS 2, conditionally denied in part Elite Model Management’s motion to set aside the jury’s verdict.  The court ruled that the “defendants do not seriously question that they failed to accommodate plaintiff’s disability….There is no way this Court could find for the defendants as a matter of law.”  The court ruled that an appropriate award for past pain and suffering should be $600,000 and future pain and suffering should be $500,000 for a total award of $1.1 million and that the “repeated failure to observe the non-smoking law in light of petitioner’s disabilities and the tolerance of cruel practical jokes evinced a reckless disregard for the plaintiff’s physical health and was reprehensible.”  Thus, damages awarded by the jury for pain and suffering is vacated and a new trial is ordered on this issue unless the plaintiff agrees to reduce then award for pain and suffering to $1,100,000 in writing with 30 days.  In all other respects the verdict is upheld.

On December 29, 2005, the Appellate Division, First Department ruled, at 2005 NY App. Div. LEXIS 14831, 2005 NY Slip Op 10233, that the trial court’s substitution during the damages trial of two alternate jurors in place of two discharged jurors, after deliberations had commenced and without the defendants’ consent, violated the defendants’ constitutional and statutory right to a civil trial jury of six persons who deliberate on all matters.  Therefore, the appellate court vacated the damages verdict and remanded the case for a new trial on damages only.  The appellate court denied the defendants’ request that the verdict on liability be overturned.

et als., No. 120577-00 N.Y. Sup., N.Y. Co., 195 Misc. 2d 223, 758 N.Y.S.2d 777, 2003 N.Y. Misc. LEXIS 176 (Supreme Court of New York, New York County 2003).