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On the second day of the epic legal case of Lawyers v. Hamburgers, the lawyers’ attorney pushed the hamburger vendor’s expert witness a little too far.
Nelson Dilg, a specialist in kitchen grease exhaust systems, was testifying via a pre-recorded video at the trial to determine whether kitchen fumes from Rogue States constitutes a nuisance to Steptoe & Johnson, the multinational law firm located next to the Dupont Circle burger joint. But even from that grainy, one-camera shot, viewers in D.C. Superior Court Judge John M. Mott’s courtroom could sense Dilg’s anger after attorney Deborah Baum asked why he didn’t ask more probing questions during his lone visit to Steptoe’s offices at 1330 Connecticut Ave. NW.
Dilg had his reasons, he testified. After he’d tried to ask a simple question during the visit —something about whether the odor was more prominent in one area of the building or another— a Steptoe lawyer jumped down his throat. The lawyer wanted to know if he was being deposed. If so, the lawyer said, Dilg had better get himself a law license first. He got the not-so-subtle hint. “That was the end of asking questions,” Dilg said, his tone as hard as a mallet.
Dilg’s testimony painted a stark portrait of the scene that Sept. 8 afternoon at Steptoe. He testified that there was “effectively blood in the water.” He seemed genuinely surprised by the hostility. Dilg figured he had been called in to do what he usually does: work with all parties to find a solution to the odor/exhaust/grease problem. This time around, he got the sense somebody “was looking to kill.”
It’s a feeling that regularly pops up as you’re sitting in Mott’s courtroom, and it’s clear who’s in the crosshairs: Rogue States, the burger shop that Raynold Mendizabal opened in February to cater to Dupont partiers looking for a late-night injection of beef and beer. If the judge ultimately declares Rogue is a nuisance—a decision that hadn’t been made before Washington City Paper’s Wednesday deadline—Mendizabal won’t become some smoke-covered Hester Prynne, sporting a ground-beef letter “N” on his chest. No, his business will likely be dead.
Mendizabal has been advised by his attorney not to talk about the legal battle until after the trial. So he has been sitting quietly in the courtroom, sometimes with his mother, listening to the lawyers representing Steptoe and co-plaintiff Boston Properties, the landlord of 1330 Connecticut Ave. NW. The plaintiffs’ evidence against him includes, among other things, a log in which approximately 39 Steptoe employees have complained of burger smoke or odor since February. A handful of those employees testified in court.
“If I don’t leave my desk,” testified Steptoe employee Leny Carrasco, who almost daily moves her work to a different floor to avoid the fumes, “I would have a terrific headache for the rest of the day. I would feel nauseous and dizzy.”
“It was like having a backyard barbecue going on in my house,” testified Thomas Barba, a partner and general counsel for the firm.
The plaintiffs also trotted out their own expert, Richard Warf, to opine about Rogue State’s new exhaust scrubbing system, the Smog Hog. The machine, Warf said, was inadequate on a number of technical fronts. Warf noted that Rogue’s Smog Hog doesn’t feature an “auto wash” function, which cleans and rinses the system daily to prevent the build-up of grease solids that lead to odor. Because Rogue’s system lacks the feature, it requires a bi-weekly manual cleaning, which alone would not be enough to prevent grease build-up. Such frequent cleanings could also damage the collector cells in the unit.
“I have never, ever told someone in a restaurant operation that they don’t need an auto wash,” he said.
The only workable solution, Warf testified, would be to run Rogue’s exhaust vent all the way to the top of the 10-story building it’s located in. The vent currently sits in a low-level canyon between the neighboring buildings, from where the fumes can apparently enter Steptoe’s air in-take vents. The “venting to the roof” suggestion has been a common refrain from Steptoe lawyers as well as the people paid to talk for them, including Warf, who was paid $800 plus expenses for his testimony.
Mendizabal’s own problem with this solution is that his landlord and co-defendant, TRT, has so far refused to install a vent to the roof. In an Aug. 10 proposed injunction order, TRT claims that such a solution would “impose significant costs,” have a “negative impact on long-term value of the 1300 Building,” and create “fire and safety hazards.” The stalemate has created a strange situation for Mendizabal: His lawyers must sit at the same defendants’ table as TRT’s attorneys, even though the burger joint’s landlord is one of the main reasons this trial ever became necessary. The whole situation would apparently have been resolved with a $84,000 vent to the roof.
Instead, both sides are racking up enormous legal fees trying to prove or disprove that Rogue States is responsible for the odors that Steptoe employees have been bellyaching about since February. The parties are taking radically different approaches: Steptoe has been relying, in large part, on emotional testimony from employees who claim their work spaces have become danger zones, inhospitable and unhealthy for anyone with a job. Rogue, on the other hand, has attempted to frame its arguments in scientific terms, claiming that no tests have been performed to measure the air quality at Steptoe or to pinpoint that exact source of the odors.
It’s not at all surprising that Mendizabal relies on science. The Cuban native holds an advanced degree in math; he once told Washingtonian magazine that profits from his restaurants, which include Lima on K Street NW, fund his physics research. He and his lawyers have taken a systematic approach to try to prove two points: that its Smog Hog scrubber is effectively working to rid its grill exhaust of 99 percent of the matter that leads to odor, and that the smells wafting through Steptoe cannot be traced back to Rogue.
To make its case, Rogue has relied on two fairly decorated men in their respective fields. Dilg testified to a long list of certifications and accomplishments in the areas of exhaust cleaning and systems. The defense’s other expert witness, David MacIntosh, is a principal scientist in human exposure assessment at Massachusetts-based Environmental Health & Engineering, not to mention an adjunct associate professor at the Harvard School of Public Health and a technical adviser to the World Health Organization. Both men were part of a team that Rogue States assembled to independently investigate the odor issues. Both said their opinions were not influenced by Rogue or its attorneys.
Dilg testified to the soundness of the Smog Hog unit and batted down all the objections that Warf had previously voiced. He also inspected the canyon rooftop area between the two buildings and spotted a more likely culprit for the odor: A vent that is apparently connected to the Moby Dick House of Kabob, an eatery located in the same building as Rogue States. The vent was greasy and smoking. “It was not the worst I’ve ever seen,” he said. “But it needed attention.”
Another suspect: The cafeteria in Steptoe’s own offices, where Dilg said his inspection revealed a subpar venting system. Dilg testified that he observed a cook-and-hold unit in the cafe that was placed not under a grease exhaust system but beneath a vent that re-circulates air throughout the Steptoe offices. There was grease clinging to the register, Dilg testified. “It’s greasy and rusty from prolonged and proven abuse,” he said.
Just as bad, Dilg noticed that the café’s conditions were perfect for growing bacteria and contaminants that could then migrate through the building’s ventilation system. “It’s the kind of condition I haven’t seen in 20 to 25 years,” he testified. Dilg said he called the D.C. Fire Department to report the conditions because he feared for the safety of the people in the building. (Authorities gave the café a passing grade upon inspection and a Boston Properties engineer later testified that the air is treated and re-circulated only in the kitchen area.)
MacIntosh took the stand later to criticize the lack of scientific methods used to determine the cause of the odor. He testified that Steptoe’s process of self-reporting odor complaints was, in and of itself, not sufficient to determine cause and effect. He related a tale in which employees at a U.S. Department of Transportation building reported smelling musty odors. They were convinced it was mold. MacIntosh’s team determined it was actually a broken sewer pipe.
The environmental health specialist noted that there are just too many variables at the Steptoe offices and the surrounding area to immediately lay the blame on Rogue. Like Dilg, MacIntosh singled out the greasy vents tied to Moby Dick and the Steptoe cafeteria, but he was also puzzled by the inexplicable nature of the odor at the law firm (it appears in some offices but not neighboring ones) as well as Steptoe’s habit of closing the outdoor air-intake vents, which would prevent fresh air from entering the building. MacIntosh suggested rigorous testing needed to be done before anyone could blame Rogue for the odor at Steptoe. “The work to reach that conclusion has not been done,” he testified.
But there’s one more factor in this case that may or may not be subtly influencing the proceedings: When Rogue States first signed a letter of intent for its space, TRT was not the owner of the building. But in March 2009, TRT purchased the property for more than $63 million. According to one source, the going lease rates in Dupont Circle may be nearly double what Mendizabal is currently paying. Could Rogue States be a pawn in game to find TRT a higher-paying tenant?
TRT certainly made its intentions clear when Judge Mott asked each party what remedy they’d want if he ruled Rogue States was a nuisance. TRT’s lawyer said he didn’t believe the judge had the authority to seek a remedy, like venting to the roof, and by the terms of TRT’s lease agreement, it would be forced to evict a proven nuisance.
Such a scenario had at least one courtroom observer wondering if Rogue States’ exhaust isn’t the only thing that stinks.
Watch Washington City Paper‘s experiment into burger aromas here:
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Photos by Darrow Montgomery