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Maryland lawyer bites back with bedbug lawsuits

By J. Freedom duLac
Washington Post Staff Writer
Saturday, November 27, 2010; 5:41 PM

Daniel Whitney has staked his claim on the title of Maryland's bedbug barrister: Since Sept. 1, the Towson attorney has filed eight lawsuits on behalf of bedbug victims across the state seeking a total of more than $7 million in damages.

The claims, ranging from $100,000 to $3.55 million, are mostly against apartment building owners and managers who the victims say were negligent in dealing with infestations.

The lawsuits have made Whitney the object of scorn, with some people suggesting that he's, well . . . something of a human parasite himself.

"I'm very aware of the derogatory comments people make about me being a bloodsucker seeking large sums of money," Whitney said. "It's nonsense. These people need help."

Whitney is far from done. He says he's on the verge of filing five more bedbug lawsuits and has another 21 open files that could result in complaints.

"Potential clients keep contacting me, almost daily," said the lawyer, whose firm, Whitney & Bogris, would collect between 33 percent and 40 percent of any settlement or judgment in the cases. "I'm going to have to take my number off our Web site."

Over a three-decade career, Whitney has mostly defended corporate clients in product liability, malpractice and toxic tort cases.

"I never thought I'd become known as the bedbug attorney," he said.

Bedbug complaints constitute a relatively nascent legal niche, surfacing only a few years ago after the bloodsucking insects came back from the brink.

The common bedbug, Cimex lectularius, which generally feasts on the blood of sleeping humans, was nearly eradicated in the United States in the 1950s through liberal application of potent pesticides such as the since-banned DDT. But the apple-seed-sized insects, which survived in other parts of the world, have made an unexpected and unwelcome return here since the late 1990s.

They're showing up everywhere: In college dorms, government buildings, Google's offices - even luxury hotels such as the Waldorf-Astoria, which has been sued by guests who say they got chewed up at the New York landmark.

As the snarky legal blog, Above the Law, put it recently: "There's Only One Way to Deal With Bedbugs: Release the Sharks."

"Bedbug infestations are reaching levels like we haven't seen in more than 60 years," Rep. G.K. Butterfield (D-N.C.) said recently at the Congressional Bed Bug Forum, which he hosted. Butterfield plans to introduce new bedbug legislation next session, building on a bill he sponsored last year, "The Don't Let the Bed Bugs Bite Act of 2009." Silly name, Butterfield said, "but this is a very serious conversation."

Last year's bill died in committee, perhaps proving that legislation is much easier to kill off than pesticide-resistant bedbugs - which, according to University of Kentucky entomologist Michael Potter, "are virtually unstoppable." (Still, at that same forum, Dini Miller of Virginia Tech's Urban Pest Management Laboratory warned against alarmist panic. "Bedbugs," she said, "are not the end of the world.")

Bedbug bites don't hurt and aren't known to spread disease. But people often develop itchy rashes or welts and other allergic symptoms where they've been bitten. Victims of bedbug infestations often report psychological effects, too; Potter said he has a massive file of letters and e-mails from people whose homes turned into virtual bedbug hotels. Their common refrain? "Please help - I'm losing my mind."

Maryland's health department doesn't keep statistics on bedbug infestations, but the District has seen a spike in bedbug reports, with calls up nearly 50 percent from last year to 270. The District's health department recently moved a bedbug summit scheduled for January into a larger space "due to overwhelming demand." (But Washington has nothing on New York, which, with more than 12,000 reported cases in 2009, has become the bedbug capital of North America.)

Although Whitney is a newcomer to Cimex lectularius litigation - a copy of "The Bed Bug Handbook: The Complete Guide to Bed Bugs and Their Control" sits on his conference table - he said he's thought about the critters for a few years, ever since his daughter was traveling in Europe with a friend who was bitten by bedbugs.

His daughter worried that she'd brought the highly portable parasites home in her luggage and became distraught when she discovered a bite.

"It created quite a bit of turmoil in our household," Whitney said. He eventually wrote a legal analysis for Toxics Law Reporter, "The Prosecution and Defense of Bed Bug Lawsuits."

Several months later, Whitney received an e-mail from Amber Croshaw, a high school teacher who said she'd fled her apartment in Cockeysville after it became infested with bedbugs that exterminators couldn't keep away. Several other attorneys had declined to take her case, but Whitney said he'd try to help.

"She sounded kind of desperate," he said. "When I met with Amber, she had scars up and down her arms." He filed suit in September in Baltimore County Circuit Court, seeking $100,000 in damages and claiming that Croshaw "has suffered embarrassment, mental and emotional distress."

Three weeks later came a second suit, in Howard County, on behalf of Orville and Rebecca Brown and their young daughter, Sarina. According to the complaint, their lives were turned upside down after bedbugs were discovered in their Ellicott City apartment building. The filing cites "anxiety and fear about the presence of bed bugs" and seeks $500,000 in damages.

In court filings, the defendants in both cases have denied liability. The Browns' management company declined to talk about their case and the company in the Croshaw case did not respond to a request for comment.

The most famous early bedbug case dates to 2002, in federal court in Illinois, where two siblings who were attacked by bedbugs during a two-night stay at a Motel 6 in Chicago were awarded $5,000 each in compensatory damages - and $186,000 each in punitive damages. An appeals court judge affirmed the lower court's decision, noting that the siblings were put in a room that motel management had designated as unfit for occupation until an exterminator could treat it.

Bedbug lawsuits "have been steadily increasing since then," said Richard Cooper, a research entomologist with BedBug Central who has been retained as an expert witness in two dozen cases in the past two years. Most, he said, are settled out of court for undisclosed sums.

But Dan Cytryn, a personal injury attorney in Coral Springs, Fla., said he has stopped taking bedbug clients in large part because although the bites may look "grotesque, generally the majority heal without major scarring, so the cases are not large, and our firm handles only large cases." Cytryn's firm settled one case for about $4,000, another for $10,000.

Christopher Robinette, a professor at Widener University School of Law in Harrisburg, Pa., and co-editor of the TortsProf Blog, recently reviewed Whitney's bedbug lawsuits and was struck by the dollar amounts attached to the filings, each of which asks for at least $100,000.

"I'm sympathetic to these people because of what they went through, but I'm skeptical about the extent of the damages claimed in these suits," he said. "I know plaintiffs' lawyers claim up to a large amount so they can get it if they're awarded it, but $100,000 is an enormous amount of money."

In a suit filed Nov. 12 in Anne Arundel County Circuit Court, Stephanie and Ishmael Josiah and their four children are seeking $400,000 in compensatory damages and $3.15 million in punitive damages from their landlord over a bedbug problem at their apartment complex in Glen Burnie.

"We're trying to set an example for other companies," Stephanie Josiah said in an interview. (Their complex's management firm did not respond to a request for comment.)

Whitney knows what you're thinking now. "Why so much money?" he said. "There's been a deliberate disregard for the risk of harm. . . . People say this is overstated, overblown. But to be able to appreciate it, you need to put yourself in the position of a bedbug victim. It's terrible."

Recently, he said, an insurance adjuster working for a defendant made what Whitney considered an unreasonable request for documentation.

"I said, 'I'll tell you what, if you really want to have a sense what this case is worth, why don't you get a sleeping bag and spend a night in the apartment?'" Whitney said. "But make sure when you wake up in the morning, you throw your sleeping bag away because it might be infested with bedbugs or eggs."

And?

"I didn't get a response. To my knowledge, he did not take me up on that."

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