Suits Pioneer Awareness of Indoor Air Pollution : Courts: Relatively small settlement is nonetheless important because it may change the way juries and scientists view problem.

In 1983, seven months after Geraldine Henchy began working in a newly built San Diego office building, the formerly healthy Escondido woman felt wretched. Her head hurt constantly--a sharp, pounding pain that seemed to grow worse throughout the day. Her sinuses were inflamed, her nose was swollen and she had a dry cough.

She wasn’t alone. Three of the four people in her office had sinus problems, ear pain and a slight cough, but no headache, court records show. Henchy started to suspect everything: perfumes, flowers, cigarette smoke, even the traffic on her commute. Two doctors said she was probably suffering from menopausal syndrome. And then, in 1984, a doctor told Henchy her illness might be caused by the building in which she worked.

In 1985, she filed suit against the five companies that owned, designed, built and maintained the Income Property Group Office Park Building at 5703 Oberlin Drive. Among other things, her lawyers alleged that the building’s mechanical air ventilation system had never been connected to a fresh air inlet duct, meaning that the same, dirty air was circulated again and again.

And this March, just a few weeks before Henchy’s case was to go to trial, the five defendants in her case offered Henchy an out-of-court settlement. Having incurred what she says is a permanent disability and having endured nearly five years of litigation, Henchy recently cashed her settlement check--for $65,000.

In this era of multimillion-dollar lawsuits, $65,000 may seem like a pittance. But, according to Henchy’s lawyers, it is a victory. Geraldine Henchy, they say, is a pioneer--one of a small but growing group whose indoor pollution cases may change the way courts, juries and scientists look at the problem.

It is an established fact that buildings can make people sick. But proving that a particular building made a particular person ill is still difficult and expensive.

“There is no such thing as ‘usual’ in indoor air cases,” said Henchy’s lawyer, Carl Meyer, a scientist and author of the book “Indoor Air Quality.” According to Meyer, who has offices in San Diego and Las Vegas, about 200 indoor air lawsuits have been filed during the past decade. Of the many that have been settled out of court, he said, “unfortunately a very, very large number of them are settled very, very low.” Those that go all the way to trial, Meyer said, usually lose.

“Having bad air in a building and having sick people is not enough for a lawsuit. You have to have a connection,” Meyer said. “It’s very difficult in these building cases to show that the people didn’t have illnesses before, and most people are not in perfect health. It’s very difficult for a jury to know how much the building contributed.”

Laurence Kirsch, a Washington attorney and editor-in-chief of the Indoor Pollution Law Report, agreed. Because the issues in indoor air cases are, for the most part, untested and because it is unclear who is responsible, lawsuits are difficult to win.

“At this point, the public has awakened to the issue and part of that awareness results in lawsuits,” said Kirsch. “But the symptoms are rather vague and diffuse--headaches, lethargy. They could be due to a sick building or to a cold or the flu or just job stress.

“The problem with litigation is that, No. 1, no amount of compensation can ever make a sick person well again. The only real function that litigation can serve is . . . telling the business community what it is they need to do to not be held liable,” he said. “So far, no one has told anyone what the law expects of them.”

And that, Meyer said, is why he took Henchy’s case.

“We wanted to teach the architecture and the construction industries that a competent professional can reliably prevent indoor air pollution,” he said, charging that Henchy’s office building was “improperly designed, assembled and maintained. The architect goofed, the construction company goofed and the air-conditioning company goofed. . . . So we concentrated on essentially professional malpractice.”

Randy Gustafson, the attorney representing the Income Property Group Office Park, said Meyer’s allegations of wrongdoing were “disputed by our consultants.” He declined further comment. Attorneys for the other defendants could not be reached Friday.

Meyer maintains that obvious mistakes were made. But, even so, he knew that the cost of trying the case would probably overshadow any jury award. “To bring a case like that to trial, one needs experts in architecture, engineering, medicine, toxicology and industrial hygiene,” he said, calculating that the expert testimony alone could have cost $40,000--and the case as a whole could have run up to $150,000. And still they might not have won.

“We are at the threshold stage,” said Meyer, who compares indoor-air cases to those tried in the 1920s after the invention of the automobile created a new area of litigation. “If you look at the history of litigation over car injuries, (the first lawsuits) had to prove everything. We’re in the 1920s in indoor air pollution.

“We tell clients, its very important for society that we raise this,” he added. “You can win settlements, but you have to go through the pioneering pain.”