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Deborah Baum, lead attorney for Steptoe & Johnson in the law firm’s attempt to declare Rogue States a nuisance over its burger fumes, tore into her final arguments on Thursday, systematically dismantling the notion that the plaintiffs didn’t use science to prove its case.
Even though the law doesn’t require a scientific causation to declare something a nuisance, Baum noted, Steptoe had methodically looked at all the options that might be causing the smell and ruled each one out until it came down to Rogue States, she argued. The very process is scientific, Baum said.
Steptoe checked into a diesel generator that the defense had singled out and discovered that it was started up only once a week at 6 o’clock in the morning. That couldn’t be the cause. The Steptoe cafeteria, Baum noted, didn’t vent into the rest of the 1330 Connecticut Ave. NW building, as the defense attorneys’ expert witness alleged, and also couldn’t be the cause. And Moby Dick House of Kabob has been operating for years at its Dupont location with nary a complaint from Steptoe attorneys.
“We don’t believe for a minute it’s Moby Dick,” Baum argued.
Besides, even if it were Moby Dick, the attorney said, it doesn’t change the basic fact that co-defendant, TRT, is responsible for abating it under the law. The owner is legally response to deal with a tenant that’s declared a nuisance, she argued, regardless of whether the landlord and tenant have a lease agreement that says otherwise. Moby Dick is also a tenant of TRT’s.
As for the legal requirement that a nuisance represent a “substantial and unreasonable interference” with the enjoyment of one’s property, Baum believed that Steptoe had more than surpassed that threshold. The log that Steptoe compiled to record employee complaints may represent the comments of only 39 people within the building, but it reflects a deeper sense of unhappiness over the burger fumes. Baum read one comment from the log: “Everybody is talking and complaining about it.”
Steptoe was adamant about the relief it wants from D.C. Superior Court Judge John M. Mott. The attorneys want the nuisance abated, and they want it abated now. In plain English, Steptoe wants Rogue to stop grilling operations now. The law firm is not adverse to allowing Rogue States and its landlord, TRT, to find other solutions that would ultimately keep the burger joint open, like a vent to the roof, but there must be proof to the court that the smell has been abated. Steptoe also wants TRT to reimburse its attorneys’ fees.
Lead defense counsel Gary Adler followed with an observation: Only eight of the 39 people who have complained on Steptoe’s log have done so since Rogue States installed an exhaust scrubber system in April. Adler called the plaintiffs’ repeated reference to 39 employee complaints a “complete distortion” and one that reflects more distortions that “permeate the record.”
Eight complaints, Adler argued, does not meet the legal threshold of “substantial” to declare Rogue States a nuisance. Besides, Adler noted, no one else has complained about Rogue States’ exhaust since the scrubber was installed. No one inside TRT’s 1300 Connecticut Ave. NW building has bellyached nor has any of the other tenants in Steptoe’s building at 1330 Connecticut Ave. NW, even though people at both addresses filed complaints before the scrubber.
It just proves, Adler said, that Steptoe was not “going to be satisfied until they imposed their will.”
Adler also pointed out that Judge Mott must, in this case, balance the harm potentially done to the defendant vs. the potential benefit gained by the plaintiffs. His point was clear: Is it fair to appease a small handful of lawyers when it could cost the defendant his business?
The defense attorney suggested that Steptoe lawyers may be prima donnas for not being willing to live with smells emanating from a restaurant kitchen. “That’s part of life in the big city,” Adler argued.
Finally, Paul Kiernan, lead attorney for co-defendant TRT, admitted that his client is “in a difficult spot.” TRT, Kiernan argued, never sat on its hands when Steptoe first brought up the exhaust problem in February. The landlord, instead, has advanced Rogue States tens of thousands of dollars to install the scrubber.
Kiernan also disputed the notion that TRT was merely trying to install the cheapest solution to fix the problem. The scrubber system, Kiernan noted, was considered not only the best solution, but also the quickest. And given all the pressures on Rogue States and TRT from the city and Steptoe, a quick solution was needed. Besides, the attorney said, Rogue States just didn’t have the money to pay for the more expensive option, a venting system to the roof.
The TRT lawyer reiterated the landlord’s position from Wednesday, however. If Mott rules that Rogue States is indeed a nuisance, the company doesn’t believe the judge should issue a remedy such as venting to the roof, the option that both Steptoe and the burger joint have preferred for months.
“We don’t think you should order anything to try to fix this nuisance problem,” Kiernan argued.
Judge Mott said he would make his decision in the Rogue States case on Tuesday afternoon.