A recent bench ruling by Rensselaer County Supreme Court Justice Raymond Elliott has allowed expansion of Nassau resident Lori Clark’s claims for punitive damages, and allowed her the opportunity to claim negligent hiring and supervision of a hotel maintenance supervisor.
The expansion of her claims comes on the heels of pre-suit testimony that has established gross incompetence and mismanagement, possible criminal conduct and falsification of Department of Health Records at the area hotel.
In the Rensselaer County case, Lori Clark claims that she visited the Comfort Inn in January of 2011, and that she was exposed to legionella during that visit. She has lost 50% of her lung capacity for life due to the severity of the lung damage caused by the Legionnaires’ Disease.
The recent ruling allows Ms. Clark the opportunity to expand her claims for punitive damages against all Defendants, and to add a claim for negligent hiring and supervision of the hotel’s maintenance supervisor. A supplemental complaint has been filed.
Pre-Trial sworn testimony revealed that, for a four month period just prior to a legionella outbreak in 2010, Ecolab had not sent, as they had agreed to, a representative to the facility to provide monthly water sanitation services because their then field representative had been fired.
When Ecolab Regional Manager Michael Rice was questioned about this at his deposition, he said that Ecolab does not, in a situation like this, typically tell a customer that they are not coming to their facility “for competitive reasons”, meaning that Ecolab is concerned that by alerting a customer that they are not showing to do their job they could lose them to a business competitor.
The Schodack Comfort Inn Maintenance Supervisor testified under oath that his Hotel routinely fabricated data on Department of Health “Daily Operation Logs” that required them to test the water three times daily. He maintained that they simply put down numbers, regardless of whether or not they were accurate, just so that they could keep their spa open. When questioned about what efforts were undertaken to eradicate legionella at the facility (after it was found to be present) and what efforts were taken to keep it from coming back, he asserted his Fifth Amendment right against self-incrimination.
“I would be, to say the least, incensed.” said Anthony Audi, owner of Schodack Hospitality, in sworn pre-trial testimony when he was shown incomplete Comfort Inn Daily Operation logs for the spa/hot tub from December of 2010. Mr. Audi went on to say: “There was a circumstance in which this was shut down. It requires, as I have become aware, it requires testing three times a day, and to have a problem like this and so – immediately not document what you did going forward is unexplainable to me.”
New York State Department of Health microbiologist Dr. Dave Dziewulski also provided sworn testimony at a pre-trial deposition. When reviewing his own agency’s investigation of this matter, he stated that “I would expect some review of recordkeeping to be done” and he went on to discuss how local DOH personnel should have better monitored the hotel’s ongoing maintenance and clean-up efforts.