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Burns v. Wilson

Superior Court of Delaware, New Castle

January 30, 2015

GEORGE R. BURNS, Plaintiff

Submitted: October 23, 2014

Upon Defendant's Motion for Summary Judgment Based on Proximate Cause, GRANTED.

Kevin Gibson, Esquire, Gibson & Perkins PC, Attorney for Plaintiff.

Paul Lukoff, Esquire, Wilks, Lukoff & Bracegirdle, LLC, Attorney for Defendant.



I. Introduction

This is a legal malpractice action filed by Plaintiff George R. Burns ("Plaintiff") against Defendant Attorney Richard T. Wilson, an individual ("Defendant Wilson"), and Defendant Wilson's employer, the Law Offices of Peter G. Angelos, PC (the "Firm, " collectively, "Defendants"). Beginning in May 2010, Defendant Wilson represented Plaintiff in an appeal before the Industrial Accident Board (the "IAB, " the "Board"), which the Board denied. Plaintiff has now brought suit against Defendant Wilson, alleging that Defendant Wilson was negligent in his representation of Plaintiff and that this negligence proximately caused the IAB's denial of Plaintiff's claim.[1] Plaintiff claims against the Firm are based on a respondeat superior theory.[2]

On October 23, 2014, Defendants presented five motions to the Court: (1) Defendants' Motion for Summary Judgment Based on Proximate Cause; (2) Defendants' Motion for Summary Judgment Based on the Professional Judgment Rule; (3) Defendant's Daubert-Based Motion in Limine to Exclude Plaintiff's Liability Expert; (4) Defendants' Daubert-Based Motion in Limine to Exclude Dr. Townsend's Causation Opinion; and (5) Defendants' Motion in Limine to Exclude Dr. Sommers' 2014 Opinions.

After the hearing, the Court reserved decision on Defendants' Motion for Summary Judgment Based on Proximate Cause. The elements of a legal malpractice action are (1) the existence of an attorney-client relationship; (2) the failure of the attorney to exercise ordinary skill and knowledge; (3) that the attorney's negligence was the proximate cause of the damage to the client.[3] Defendants have moved for Summary Judgment based on the contention that Plaintiff cannot establish that Defendant Wilson's negligence was a proximate cause of the ruling by the IAB that was adverse to his claim. Because the Motion for Summary Judgment Based on Proximate Cause would be dispositive if granted, the Court deferred decision on the remaining four motions. The Court now finds that the alleged errors by Defendant Wilson could not have been the proximate cause of the Board's denial of Plaintiff's occupational disease claim. For this reason, the Court now GRANTS Defendants' Motion for Summary Judgment. The remaining four Motions are thereby rendered MOOT.

II. Facts and Procedural Background

Plaintiff was an employee of Kirkwood Tire, Inc. from approximately 1974 to February 10, 2008. On February 11, 2008, Plaintiff became an employee of Edgewater Tire Center, Inc. (collectively, "Employers"), and worked for Edgewater until March 30, 2008. On May 20, 2010, Defendant Wilson filed two initial petitions to the IAB on behalf of Plaintiff. The petitions alleged that Plaintiff had contracted sarcoidosis of the lungs, heart, and brain as a result of exposure to mold, brake dust, and tire dust during the course of his employment by Employers. Employers both disputed the causal connection of Plaintiff's injuries to his employment.

During discovery in the IAB matter, Dr. William Sommers ("Dr. Sommers") provided a report to Employers' counsel, which stated, "Assuming that there is documentation of chronic occupational exposure to mold and mildew[, ] I find it medically probable that there is some causal relationship between [Plaintiff's] occupational exposure and his diagnosis of sarcoid."[4]Also during discovery in the IAB matter, Plaintiff solicited a report from Dr. Dennis M. Staiken ("Dr. Staiken"), which stated, "Therefore[, ] it is my opinion, within a reasonable degree of scientific certainty[, ] that exposure to the multiple bioactive compounds, dust molds/microbes was a proximate cause of the development of [Claimant's] physiological reaction in [the] development of sarcoidosis."[5]

An IAB Hearing was held on July 9, 2012. At the hearing, expert testimony was provided by Dr. Cohen and Dr. Montz, on behalf of Employers; and Dr. O'Brien, Dr. Kipen, and Dr. Leschak-Gelman, on behalf of Plaintiff. Neither Employers' counsel nor Plaintiff's counsel called Dr. Sommers or Dr. Stainken. On August 22, 2012, the IAB denied Plaintiff's claim.[6]The Board was not convinced that Plaintiff had been exposed to occupational toxins or that this exposure had caused Plaintiff's sarcoidosis. While Plaintiff's expert Dr. Leschek-Gelman testified that employment in a poorly ventilated office with mold and dust issues is the type of occurrence that can often trigger sarcoidosis, Dr. Leschek-Gelman could not personally testify that Plaintiff had been exposed to these conditions.[7] Dr. Lescheck-Gelman "admitted that her opinion regarding Claimant's work environment [was] based on Claimant's account as opposed to on her personal impression of the layout where Claimant worked."[8] The Board emphasized that "Claimant did not present evidence that specifically identified the chemicals, odors, fumes, etc. to which Claimant was exposed at his workplace other than statements that mold was present."[9]

Plaintiff did present consistent testimony from various lay witnesses that his office would flood after rain or snow and that mold would appear on the floorboards. The Board noted that despite the testimony of water problems, "the evidence presented indicates that Employer[s] routinely passed inspections, " including an inspection that was required to approve the loan when the building was purchased by its current owner, Mr. Wilson, in 2008. Mr. Wilson testified that the building was not cited for water damage, for mold, or for fumes, and he did not have to replace anything such as the baseboards or take additional steps to compensate for damage from water or mold. The IAB reasoned that "if the building flooded as much and for the number of years as reported without having the matter addressed, there would be some structural damage or some area that would need to be addressed or replaced. Similarly, if the building was as toxic as Claimant purports it to be, it would have been identified."[10]

The Board found compelling the testimony of Dr. Montz, who testified on behalf of Employers.[11] Dr. Montz holds a Ph.D. in wildlife sciences and is President of Indoor Air Solutions, an environmental consulting firm, specializing in industrial hygiene.[12] Dr. Montz testified that he has been doing mold testing for twenty-five years and has never heard of mold causing sarcoidosis.[13] Dr. Montz opined that even assuming that mold does cause sarcoidosis, it would have to be determined that mold was present in the environment at sufficiently high levels to get into the air; for mold to be life-threatening, it would have to be all over the walls and not just around the baseboards as Claimant described.[14] Dr. Montz testified that Claimant's evidence was inconsistent in that, if Claimant was as much of a "clean freak" as he claimed to be and cleaned the mold every time it would become visibly present, the mold would never have gotten bad enough to cause serious health problems.[15] Dr. Montz acknowledged that if the building did in fact flood as Claimant described, then mold would ...

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