Paperwork Glitch Could Derail Other Families’ CO Lawsuit

BERLIN – Citing the passage of a deadline to serve several of the defendants with summonses within the prescribed 120 days of the filing of the action, a federal judge last week ordered the plaintiffs in the second lawsuit filed in the fatal carbon monoxide poisoning incident at a Boardwalk motel in June 2006 to show cause why the papers have not been served or risk a dismissal of the case.

In March, the original case filed in U.S. District Court by the family of two victims who died of carbon monoxide poisoning at the Days Inn Oceanfront on the Boardwalk at 22nd Street was settled for an undisclosed amount. The 24-count federal suit was seeking $30 million in damages from the various defendants including Bayshore Development, owner of the motel where the tragic incident took place; Heat Transfer Products, the manufacturer of the faulty water heater deemed as the source of the CO leak; R.E. Michel Company, the distributor of the water heater; and All About Plumbing, the local company that purchased and installed the water heater in the Boardwalk motel months before the incident.

Six days after that case was settled, a total of 10 new plaintiffs filed suit in U.S. District Court naming the same defendants as the original case along with several others including the parent companies and subsidiaries of the motel’s ownership. Five of the plaintiffs were in two of the rooms on the first floor of the motel adjoining the room where the fatalities occurred and suffered directly from CO poisoning and were later hospitalized. The other five plaintiffs were either husbands, parents or both of the five victims and were allegedly indirectly affected by the incident.

Last week, just over three months after that second suit was filed in the case, a federal judge threatened to derail it before it even got started because several of the individuals or entities listed as defendants had not been served with the requisite paperwork.

“The plaintiffs have failed to serve the summons and complaint upon Avis Budget Group, Inc., Wyndam Worldwide Corp., Days Inn Worldwide, Inc., Steve Drocella and O.C. Tile within 120 after filing of the complaint,” the order from U.S. District Court Judge William Nickerson reads. “It is ordered that the plaintiffs show good cause with 14 days of this order why the complaint should not be dismissed.”

The judge’s order was issued last week on Aug. 12. Five days later on Monday, Aug. 17, the plaintiffs filed a statement in an attempt to show good cause why the various plaintiffs hadn’t been served with the requisite paperwork in the new case in an effort to avoid an abrupt dismissal of the case as to those defendants. Essentially, the plaintiffs told the court several of the defendants in the original case were no longer represented by the same agents or attorneys in the second suit filed by the victims in the adjoining rooms, or in some cases, the new defendants simply could not be reached in order to serve them with the paperwork.

“These defendants are also essentially the same defendants who were party to a previously dismissed companion case over which this court had jurisdiction and to whom this matter was assigned,” the plaintiff’s letter defending the delay in serving the paperwork reads. “Upon filing the complaint and receipt of writs of summons to serve original process upon these defendants, the plaintiff’s forwarded same to a private process server for service upon all of the various defendants on or about April 7, 2009.”

At risk of dismissal is the new suit, which includes 35 total counts against the aforementioned defendants, seeking a combined $25 million.

Late in the evening on June 26, the plaintiffs in the two separate rooms began to complain of a variety of symptoms including but not limited to severe headaches and vomiting, which they initially believed was food poisoning.

In room 125, a plaintiff awoke at around 1:30 a.m. on June 27 with a severe headache. She fell back asleep and woke again around 7:30 a.m. feeling weak and shaky. Also in room 125, another plaintiff complained of a severe headache and numbness in her left arm upon waking.

Around 9:30 a.m., the female plaintiff called 911 along with the occupants of room 127 to tell them an ambulance was on the way. Shortly thereafter, Ocean City EMS arrived and transported each of the plaintiffs to AGH where they were kept for several hours for treatment for what was believed to be food poisoning. It later turned out all five were suffering from exposure to high levels of carbon monoxide poisoning.

After several hours at the hospital, all five plaintiffs returned to the motel around 2 p.m. to gather their belongings and return home. About 30 minutes after they left Ocean City, hospital officials called the husband of one of the plaintiffs and told him the plaintiffs were suffering from carbon monoxide poisoning and that they should return to AGH immediately.

The plaintiffs went back to the hospital where they were administered oxygen for roughly five hours. They later learned two members of a family staying in an adjacent room had died of carbon monoxide poisoning during the same incident.

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