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In a novel smoking lawsuit, a Manhattan judge has said he will allow a jury to hear expert testimony on the alleged harm secondhand smoke caused a woman who worked at a modeling agency for a little more than six weeks. Manhattan Supreme Court Justice Louis B. York ruled last week that since the scientific community generally agrees secondhand smoke can cause sinusitis that aggravates a pre-existing asthma condition, it was up to a jury to decide — based on testimony from competing experts — whether six weeks of secondhand smoke was sufficient exposure to cause injury. Rosalind S. Fink of Brill & Meisel, the lead attorney for plaintiff Victoria Gallegos, said York’s ruling in Gallegos v. Elite Model Management Corp., 120577/00, marked the first time a judge has agreed to hear a secondhand smoke suit with such a short period of exposure. Robert I. Goodman, an attorney for defendant Elite Model Management Corp., said he was not surprised by the ruling, adding that his client’s experts would contest at trial whether Gallegos could have been harmed during her employment. “I think the judge just felt more comfortable getting the issue in front of the jury rather than cutting the plaintiffs out,” Goodman said. Gallegos worked as a sales director for Elite from late September 1999 until early November, when she was fired. In her complaint, Gallegos alleges she was constantly exposed to secondhand smoke at the agency, where agents who book models and models themselves smoked in the open area where Gallegos worked. Gallegos, who has asthma and is sensitive to smoke, alleges she had told Elite that she would not take the job unless the agency did something about the secondhand smoke in its office. Gallegos claims she was assured that changes would be made, but when she began working, the smoking persisted. She immediately began suffering symptoms such as wheezing, shortness of breath, nausea and coughing up blood, she said. She said she repeatedly complained, but nothing was done about the smoking. She said further that she was reproached and told not to be a “fanatic,” and was eventually fired. In her complaint, Gallegos alleges that she contracted chronic sinusitis from the smoke, a condition that aggravates her asthma. Her claim alleges that Elite violated New York City Human Rights Law and the Smoke-Free Air Act by failing to provide a smoke-free workplace, creating a hostile workplace and discriminating against her in firing her. Elite has contested the allegations and claims Gallegos was fired because she was not up to the job. Elite also contested the validity of expert testimony proposed by Gallegos, saying there was no scientific evidence supporting a claim that brief exposure to second-hand smoke could cause sinusitis. Elite asked Justice York to preclude the testimony. REQUEST DENIED York denied the request, saying that whether Gallegos was exposed to enough smoke to cause injury was not a question of law but one for a jury. “Courts have faced such obstacles in asbestos exposure, but that has not prevented many juries from determining that asbestos caused such diseases as asbestosis, lung cancer and mesothelioma,” the judge wrote. The judge declined to hold a hearing under Frye v. U.S., 293 F. 1013, to determine if such testimony was generally accepted in the scientific community. He also noted his preference for hearing motions on scientific evidence far in advance of a trial. “The traditional approach in Frye hearing cases is to hold an in limine hearing at the start of the trial or sometimes even during the trial,” the judge wrote. “That is a far less productive way of proceeding and is a waste of the jury’s time as it sits and waits while the hearing hurries along and the judge’s equally hurried decision is made without sufficient time to study and reflect.” A trial is scheduled for next week.

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