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March 2015

San Francisco Team Wins Non-Suit of Personal Injury/Construction Defect Lawsuit

On Feb. 11, Gordon & Rees San Francisco partner Matthew Hawk, with assistance from senior counsel, Michael Wilson, and associate Jessica Clouse, successfully secured a non-suit for their general contractor client in a $10 million personal injury/construction defect action in Santa Clara County Superior Court. After 14 days of trial, the court found that the plaintiff failed to make a prima facia showing of any of its various causes of action pled against our client, and granted non-suit as to all causes of action.

The plaintiff purchased a condominium in a luxury high-rise in downtown San Jose, California. Upon moving into her unit, the plaintiff began making complaints of alleged second hand smoke infiltration into her unit from unknown sources. Despite extensive investigations by the developer, architect, general contractor, and building inspectors, no one could find any evidence of sources for smoke infiltration. Despite these findings, the plaintiff sued numerous defendants involved with the development, design, construction, and sale of her unit alleging a plethora of causes of action, including breach of contract, negligence, fraud, and misrepresentation. The plaintiff sought over $10 million in both personal injury and property damages.

The turning point in the trial occurred when the defense successfully precluded two of the plaintiff’s experts from testifying at trial during contentious evidentiary hearings. Upon cross-examination the plaintiff’s treating physician and lead medical expert admitted it would be speculation to state that any of the plaintiff’s alleged physical injuries were in any way related to exposure to second hand smoke. With no expert to draw a causal link between any of her alleged physical injuries and exposure to smoke, the judge immediately ruled that the plaintiff’s personal injury claims were dismissed. The plaintiff’s second expert, an environment scientist at Stanford, was retained to take particulate measurements in the plaintiff’s unit in an attempt to prove that second hand smoke was in fact in her unit and was caused by a defect in construction. This expert admitted during his examination that he simply measured particles in the air, but never went the next step to test what those particles actually were. The judge found that the methodology employed with this expert was so flawed that his results would do nothing more than lead the jury to speculate as to what was actually in the plaintiff’s unit.

After nine days of witness and expert testimony in the plaintiff’s case-in-chief, all the defendant’s filed motions for non-suit. Despite the judge’s tentative ruling initially denying all of the defendant’s motions, the judge was persuaded during oral argument to change his tentative ruling and grant our client’s motion for non-suit as to all causes of action pled against our client, resulting in a full dismissal from the case. This concluded an over four year battle with the plaintiff.

Due to a CCP 998 offer that was made early in the case, our client is entitled to recover a significant amount of costs, including extensive expert costs stemming from the various IMEs that were undertaken, as well as the toxicological analyses.  

Jessica Clouse



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