Hospitality Law Conference 2010 - Don’t let bed bugs bite you in court: Do you know what you need to know? - Christian Hardigree & Richard Cooper

Don’t let bed bugs bite you in court:
Do you know what you need to know?

© Copyright Bed Bug Central

Presented by:
Christian Hardigree and Richard Cooper
Moderated by: Mitchell Miller
Sponsored by: Protect-A-Bed
© Copyright Hardigree and Cooper 2010

Presenters
Christian E. Hardigree, Associate Professor at UNLV
• Former Associate Dean and Department Chair
William F. Harrah College of Hotel Admin, UNLV
• Trial Attorney & Consultant, Parnell & Associates
• Licensed to Practice Law in Nevada & Georgia

Richard Cooper, Vice President of Bed Bug Central
• Entomologist, MS
• Coauthor of Bed Bug Handbook (297 pp text)
• Provide Expert Testimony in Bed Bug Claims


Bed bugs were virtually eradicated
from the U.S. in the post WWII era


1999 Limited Mostly To Hotels



Quickly Spread Into Residential Sector
Apartments

Single Family Homes

Colleges &
Universities


Bed Bugs in Hospitals & Health Institutions


Bed Bugs in Schools


What’s Next?
Bill Clinton’s
Office


Where Are We Finding Them
• Hotels, motels, inns • Churches
• Apartments/condominiums • Used furniture outlets
• Dorm rooms • Fire stations
• Moving/delivery vans • Trains/buses/cruise ships
• Laundries and dry cleaners • Movie theaters
• Hospitals • Nursing homes/assisted living
• Jails • Barracks
• Furniture rental stores • Private homes
• Subways • Youth hostels
• Schools • News rooms

New York City: 311 Calls
NY 311 # Phone Inquiries
9213

9000
8000 6889
7000
6000 4638
5000
4000
3000 1885
2000
1000 192

0
2004
1 2005
2 2006
3 2007
4 2008
5

Complaints vs. Violations (NY City)
FY 2004 FY 2008
Complaints Violations Complaints Violations
Brooklyn 52 13 3,401 1,073
Manhattan 35 17 2,107 626
Queens 80 47 1,927 588
Bronx 25 5 1,682 546
Staten Island 0 0 96 38
Total 192 82 9,213 2,871


• Arizona
•
•
California
Colorado
Hundreds of headlines in
• Florida 26 Different States in 30 days!
• Illinois
• Indiana
• Kansas
• Massachusetts
• Minnesota
• Missouri
• Montana
• Nevada
• New Jersey
• New Hampshire
• New Mexico
• New York
• Ohio
• Oregon
• Pennsylvania
• Tennessee
• Texas
• Virginia
• Washington DC
• Washington State
• West Virginia
• Wyoming

Prevalence of
Bed Bugs in Hotels
Continues to Rise

© Copyright Hardigree and Cooper 2010 © Copyright Bed Bug Central

Increase in Hotel Bed Bug Infestations
(700 Business Class Hotels)
# Hotels Serviced For Bed Bugs
59%
400 42% 410
300 33%
293
200 15% 236
<1% 5%
100 103
6 35
0
2003
1 2004
2 2005
3 2006
4 2007
5 2008
6
Data Courtesy of Steritech

Hard to say you didn’t know
that bed bugs are back!


Most people have no idea
what bed bugs are
• Insects that feed exclusively on blood
• They don’t discriminate (blood is blood to a bed bug)
• They are not the result of poor sanitation or hygiene
• They don’t transmit diseases via blood feeding activity
• They don’t jump or fly but are excellent hitchhikers
• They must be introduced from one infested place to another

When infestations do occur there can be significant
emotional, financial and legal consequences!

Bed bugs may not transmit disease
but can be an Emotional Experience!

Courtesy of Richard Naylor



People suffering from bed bug
infestations often report:
• Embarrassment and shame
• Afraid to have guests in house or to visit family & friends
• Can’t sleep and having nightmares
• Poor performance at work/school from stress & lack of rest
• Emotional and/or mental anguish
• Uncontrollable itching and disfiguring scars
• Secondary infections resulting from scratching bites
Often Described as a Life Altering Experience!

Litigation associated with
bed bugs is on the rise!
The Number &
Type of Law
Suits Continues
to Increase
Every Day!

Lawsuits
Mathias v. Accor Economy Lodging, 347 F.3d 672 (7th Cir. 2003)
• Brother and sister staying at Motel 6 in Illinois claim they were
bitten by bedbugs. Brought as a diversity suit. Jury awarded
each person $5,000 in compensatory damages and $186,000 in
punitive damages. (37:1 ratio)
• Claimed that motel not a “flophouse”, therefore guilty of “wanton
and willful conduct” which allowed punitive damages.
• Infestation had reached “farcical proportions”.
• Staff told to call bed bugs “ticks” because felt it would “alarm the
customers less”.
• Rooms rented even though put on “Do not rent until treated” and
“Do not rent, bugs in room” status.

Lawsuits
Ludlow Properties vs. Young (Civil Court City of NY) (2004)
Infestation in apartment building; Young’s studio apartment
infested, Young bitten several times, problems sleeping. Sued
for failure to pay rent. Claimed breach of warranty of
habitability as defense. Court agreed, awarding $3,632.50 in
damages for partial rent, giving 45% credit for
uninhabitability. Young did not abandon the
property, nor claim constructive eviction.


Lawsuits
Ludlow Properties vs. Young, con’t.
• Court considered several factors in determining
abatement of rent:
– Size of the premises
– Severity of the infestation
– Landlord’s diligent effort to eradicate the
condition
– Tenant’s continued use of the premises
• Left door open on constructive eviction claim


Lawsuits
Livingston vs. H.I. Family Suites, 19 Fla. L. Weekly Fed. D 1069 (2006)
• Husband, wife and child sued hotel for gross negligence for
bites due to infested room. Hotel’s log was used to show that
they were aware of the infestation. Just 15 days prior to the
Livingston’s visit, another guest in the same room had
complained of infestation. In the two weeks prior to their visit,
four other complaints on the same floor.
• Judge denied Defendant’s motion to dismiss fraudulent
concealment – concealment by omission – may have duty to
warn of bed bugs in hotel;
• Matter to proceed to trial. Settled shortly thereafter.

Lawsuits

Stepanek vs. Wichita State University (2007)
• Mother and son claim lightheadedness and nausea
associated with over-exposure to pesticides following
treatment for bedbug infestation in campus housing
(apartments). Claims doctors said son was “2 hours from
dead” and she was “2-12 hours from dead” due to exposure.
Claims both campus maintenance and pest company were
spraying. Mother has been diagnosed with benign tumors
in her lungs, allegedly due to exposure.

Other Suits
• Trainer vs. Hilton Hotels (Phoenix, 2007)
• Sidney and Cynthia Bluming v. Mandarin Oriental Hotel
Group, Ltd. (New York, 2007)
• Glenn vs. Rodeway Inn (Virginia Beach, 2007)
• Kim vs. Hilton Hotels (Ohio, 2007)
• Clark vs. Beacon Capital Partner et al. (Fox News, 2008)
• Chisley v. Barona Resort & Casino (Tribal Court, 2008)
• Desrosiers v. Bendock Investment Co. (Texas, 2009)
• Cowan v. Rent-a-Center (Tennessee, 2009)

Lawsuits
Huynh & Nguyen vs. JCPenney (July 2008)
• Ordered $1600 in furniture @ 2006;
• Months of bites, unsure what causing them;
• Ended up with infestation in home;
• Jury verdict - awarded $49,000


Lawsuits
Dorrity v. Grandview Terrace (6/09)
• Senior citizens building, William Dorrity
bitten over period of months;
• Lease requires tenants to pay costs of extermination –
charged $299/each;
• Landlord delayed treatment over 30 days;
• N.J. Superior Court ruled in favor of Plaintiff; landlord
appealed;
• Obligation for treatment is LANDLORD’S!

Lawsuits
Scott vs. La Coquille Motel (Virginia Beach, 9/09)
• Mother seeks $100,000 for bites to her son;
• “suffered itching, rashes, pock marks, scarring, humiliation,
and embarrassment and remains injured permanently…”
• Owner claims son has scabs when checked in and mom said
it was chicken pox;
• City Health has received 2 complaints of bed bugs this year
at this hotel – one the subject of this lawsuit;
• This owner has been sued for bed bugs in other hotels he
owns;

Associated Costs
• Even without litigation – have to spend money on these claims
• Worker’s comp claims
• Depending upon your response plan, you may be required to
replace all of the individual’s belongings and/or cover cost of
pest management if their homes become infested.
• Loss of Revenue
Standard room at $143.19/night (incl. tax) – take out a 9 room
grid
– for 2 weeks - $18,041.94
– for 6 weeks - $36,083.88
• Public relations
• Blogs © Copyright Hardigree and Cooper 2010

Bed Bug Registry


Introduction of
Bed Bugs is Inevitable!


Do you believe your
client’s facility has
adequate procedures in
place to deal with threat
of bed bugs?

A Few Basic Facts (Bed Bugs 101)
• Feed exclusively on blood
• Do not feed every day, seek a blood
meal once every week or so
• Can survive many months without
feeding
• Lay 3-5 eggs each day (hatch in 7-10 days)
• Nocturnal & very secretive

Misconception #1
You will know if a
guest room is infested
with bed bugs!


The Fact Is
Infestations are
not identified
quickly enough!
Infestations often go undetected for
many months and become well
established before they are recognized

VisibleWhy Don’t Peopleis usually an
evidence on the mattress See
indicator a well established infestation that
Them Sooner?
has been there for quite some time!


© Copyright Bed Bug Central © Copyright Bed Bug Central

Bed Bugs Inhabit
Areas of Least
Disruption First


Hotels - Headboards First!



Box Springs:
The Next Most Likely Place


Guests may not recognize
the problem either


Feeding Activity is Hidden Under
the Veil of Darkness
• Typically feed while people are fast asleep
• Bites are painless so bugs are not detected
• Bugs retreat back to secretive hiding places
after they are done feeding


Delayed or No Reaction to Bites

• Orkin (900 participants)
– 95% of participants failed to
react with 18 days of initial
being bitten
• Univ. Sheffield (U.K.)
– 54% participants never reacted
the first time they were bitten
Courtesy of Nigel Hill


Misconception #2
Throwing the Infested
Bed Away is a
Solution!

The Fact Is
Bed bugs are not
limited to beds and
will infest the entire
guest room

Most bugs are in sleeping & resting areas but
some disperse in an unpredictable fashion!
Dr. Michael Potter
93% Univ. Kentucky:
Couches
& Chairs Avg. Distribution of
23% Bed Bugs on Beds
Other 7% • Dressers, nightstands etc.
Beds
• Moldings, walls, ceilings,
70%
shelves etc.
• Inside books, coffee maker,
deodorant dispenser, etc.
Data Source: PCT Magazine August 2006

Behind pictures & wall hangings



Bed bugs under and behind nightstand


Screw hole behind nightstand


Underneath
nightstand


Three eggs inside a dresser




Eggs on the back of a stereo



Under carpets and baseboards


Secondary Infestations

Adjoining hotel
rooms were infested
20% of the time
Data Courtesy of Steritech from 2006 Whitepaper


Movement of Bed Bugs to
Adjacent Units
Secondary

Secondary Primary Secondary
72% infestation
72%
Data Courtesy of Steritech
from 2006 Whitepaper
Secondary


Medical School Staff Accommodations

1 Room
6th floor

Courtesy of Stephen Doggett, ICPMR, AU © Copyright Hardigree and Cooper 2010


4 Rooms
(2 floors)
3 Rooms
6th floor
1 Room
7th floor



12 Rooms
(4 floors)
3 Rooms
6th floor
7 Rooms
7th floor
1 Room
8th floor
1 Room
9th floor



38 Rooms
(9 floors)
2nd floor
3rd floor
5th floor
6th floor
7th floor
8th floor
9th floor
10th floor
11th floor


68 Rooms
20% of
Facility
Infested
Infestations
on every
floor
50% shared
a common
wall with
another
infested
room


Misconception #3
Magic sprays exist for
either the hotel or the
guest to kill bed bugs

The Fact Is
Pesticides are not as reliable
as you may think they are!
Efficacy Testing:
Laboratory
vs.
Field
Populations

Dini Miller - Virginia Tech
Mortality Studies
Forced
Exposure
LT50 LT50
Treatment N
Lab Strain Field Strain
Demand CS .03% 50 20 min 1h 18min
Tempo SC Ultra
50 44 min 12h 10min
.05%
Talstar One .02% 50 53 min 3d 16h
Suspend SC .06% 50 61 min 19d 2h

University of Kentucky
96 of 110 (88%) of field populations
tested were resistant to pyrethroids

Courtesy of Stephen Doggett

Field collected bugs were several hundred to several thousand
fold resistant to Deltamethrin & Lambdacyholothrin!

Of Note . . . .
Scott vs. La Conquilla Motel
• Owner said that he paid a pest control agency
$1,400 to “spray for pests as a precaution” before
the Labor Day Weekend

• In ridding a different 47-room property from bed
bugs, same owner said that with fumigation and
replacing mattresses, said he spent $40,000 on the
hotel and lost revenue of $20,000 in 2007.


Bogus Bed Bug Sprays??
• Don't sleep with the enemy and don't let the bed bugs bite, use GOOD
NIGHT! GOOD NIGHT is registered with the U.S. EPA. Dust mites
are in almost every household regardless of cleanliness. Did you know
your mattress will double in weight in 10 years, due to the more than
10 million dust mites living there? Regular treatment of your mattress,
pillows, bed frame, box spring and surrounding carpet will eliminate
this problem and assure you of a deep, GOOD NIGHT sleep.
• Travel size convenience
• Easily fits in suitcases, purses, backpacks and briefcases
• Kills dust mites and bed bugs for use wherever you sleep
• Use on mattresses, pillows, blankets, carpets and chairs
• MFG Brand Name : Sprayway

More Bogus Bed Bug Sprays??
• 6 oz spray bottle
• Water based
• 16 week residuals
• 0.50% Permethrin
• General purpose aqueous insecticide prevents the
pick-up of bedbugs and other listed insects
such as fleas, ticks, and roaches
• Spray luggage outer and inner surfaces before
leaving home or returning home

More Bogus Bed Bug Sprays??
• All Stop™ Dead Bed Bugs™ Contact Killing Spray is a proven safe non-
pesticide solution that is used to eliminate Bed Bugs on contact. Our specially
blended Contact Killing Spray does not use harsh pesticides, such as Permethrins
and Pyrethrins, which are commonly found in many traditional treatment methods.
• Contact Killing Spray does not produce any strong or offensive odors. After
treating your bed, it is still safe enough to sleep on it that very night!
• Unlike other pesticide options that run the risk of being toxic to your family or the
environment, Contact Killing Spray is safe and effective. It won't harm your
family or pets.
• All Stop™ Dead Bed Bugs™ Contact Killing Spray is so effective,
it even works to stop almost any type of insect, including but
not limited to: Bed Bugs, Ants, Lice, Mites, Fleas, Mosquitoes,
and much more...
• All Stop™ Dead Bed Bugs™ Contact Killing Spray is also an
effective disinfectant which can be used to sanitize and clean areas
where Bed Bug residue, such as blood or fecal matter, is present.

Misconception #4
As long as no bugs are
seen during the inspection
following treatment it is
safe to put the guest room
back into service

The Fact is:
No tools or methods exist that are
completely reliable for detecting
low level infestations


low level infestations often
go undetected!

Visual inspections are highly unreliable
when it comes detecting low level
infestations!



Just Because You Don’t Find Them
Doesn’t Mean They Aren’t There!

Canine Scent Detection
• Helps offset the
limitations of a
visual inspection

• More efficient &
less invasive than
visual inspections

Claims of > 90% Accuracy



What are industry claims based upon?


© Copyright Bed Bug Central © Copyright Hardigree and Cooper 2010

Require a System for
Verification
1.Show me the bug!
or
2.Double blind verification
- two dogs & two handlers
- two independent alerts

Development of Early Detection Tools


NightWatch™
CDC 3000™
Uses CO2, Heat & Kairomones to
Attract Host Seeking Bugs

What should your
clients be doing to
survive a claim in
court?

Bed Bugs: Not New Anymore!


First
Develop a written
policy & procedure
for dealing with
bed bugs

One Hotel Response Plan
• The best plan of action is to meet the guest concerns and needs by having them moved to
another room if possible, and to have the room exterminated by professionals. An exemplar
of a guest action plan is as follows. Depending upon the economic situation of your hotel this
plan can be modified.
• Once a guest has reported that they have been a) bitten by a bug, b) have bugs in their room,
or c) have found black or brown marks on their bed, sheets, mattresses etc.:
– The department that received the call shall notify Housekeeping. It is usually best to have a supervisor go
to the guestroom.
– Housekeeping should notify the Risk Management department (or the equivalent).
– The exterminators should be notified.
– The guest should complete a written report of the incident.
– It is advisable that the guests shower before leaving the room and a clean set of clothes should be
provided to the guests.
– The room should be placed in a “do not rent” status, as well as the two rooms next door, and the three
rooms above and below. Guests in these rooms should be moved to other rooms.
– All rooms should be inspected and sprayed by the exterminator. The rooms should remain in a “do not
rent” status for an additional five (5) days after and be re-inspected before renting out to other guests.
– The bedding mattresses, sheets and drapes in the infected room should be destroyed. The items in the
adjacent room only need to be dry-cleaned.

Your clients must demonstrate
they have taken every reasonable &
practical measure to:
1. Detect infestations as quickly as possible
2. Respond quickly and appropriately to infestations
that have been identified
3. Have procedures for dealing with guests and their
belongings
4. Have a comprehensive follow up program to prevent
population rebound and/or spread to surrounding
guest rooms.

Comprehensive Checklists


All staff should receive training



Know what the bugs look like

1 mm 5-6 mm

What to look for?



Housekeeping - 1st Line of Defense
Daily Routine Inspections



Housekeeping
Visibly Accessible Area Only



But even visible areas are time
consuming to inspect




Not enough time to inspect
under box spring



Encasements:
A Great Early Detection Tool



Continuous method
of monitoring for
activity 365 days a
year



Lots of encasements are available
but not all are effective
Many specify use for bed bugs
• Linens & Things
• Bed Bath & Beyond
• Amazon.com
• Tallman Scientific
• Wal-Mart, Target etc.

Folds and pockets create hiding places!



Zipper end stop is where encasements
are most vulnerable to failure



Encasements that failed when zipper
end stops are backed off 1-2 teeth

National Allergy
(Elegance)


Tamper Resistance Protection




Maintenance - Line of Defense 2 nd

Periodic Intensive Inspections




3 rdLine of Defense:
Periodic Professional Inspections




When infestations are
identified or suspected...



Any suspicious samples should be
saved for positive identification

Psocid
Dermestid
shed skin
Spider Beetle Roach
There are many “look a like” pests
it may not be a bed bug!

Seal everything that is being discarded
prior to removing from guest room



Encase replacement beds!



Don’t rely on pesticides to
eliminate the infestation

© Copyright Bed Bug Central © Copyright Bed Bug Central © Copyright Bed Bug Central © Copyright Bed Bug Central

A Multi Disciplinary
Approach is Essential!

Vacuums, Steam or Freezing
to Eliminate Bugs and Eggs

Steaming or
freezing to destroy
bugs & eggs

Vacuum
visible bugs © Copyright Bed Bug Central


Hot Laundering an effective method
for destroying bed bugs and their eggs!

Bugs & eggs are
unable to survive
when placed in hot
wash cycle or a hot
dry cycle


Packtite® Portable Heat Unit

Stephen Doggett
Stephen Doggett


Portable, plugs into
120 volt wall outlet
& reaches > 145oF

100% elimination of every last bug
and egg in one service is unlikely!
Determining when it is ok to place a
room back into service is your client’s
single biggest challenge
Failure to detect an infestation and
failure to eliminate known
infestations place your client at risk!

Keep guest rooms out of
service until...
1. No new activity is observed during inspection by pest
management professional and..
2. Several days of continuous monitoring fails to yield any
new evidence of bed bug activity
• Visual inspections of encasements and rest of room
• Commercial monitoring/trapping devices?
• Canine Scent detection??

The longer you keep the room out of service and the
more methods you use to confirm the absence of
bugs the better your position in court

Include surrounding guest rooms
in the scope of service
Secondary

Primary
Secondary Secondary
infestation

Secondary


Populations can rebound in
1o or 2o guest rooms months later

A Follow-up Program
is Critical In Order to
Prevent a Population
Rebound

Regulatory language varies
depending upon where you are
Illinois
• http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K12-5
Nevada
• http://www.leg.state.nv.us/NRS/NRS-447.html
• http://www.cchd.org/public-accom/section5.php
Washington, D.C.
• http://ddoe.dc.gov/ddoe/cwp/view,a,1209,q,498305.asp
San Francisco, CA
• http://www.sfdph.org/dph/files/EHSdocs/ehsPublsdocs/EHSDicrectorRules/VectorControl.pdf
Boston, MA
• http://www.cityofboston.gov/isd/housing/bb.asp
Cincinnati, OH
• http://city-egov.cincinnati oh.gov/Webtop/ws/council/public/child/Blob/22021.pdf? rpp=10&m=
1&w=doc_no%3D'200800142
Don't Let the Bed Bugs Bite Act of 2009 (HR2248 IH)
• http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.2248


Thank You!
Questions?


Hospitality Law Conference 2010 - Don’t let bed bugs bite you in court: Do you know what you need to know? - Christian Hardigree & Richard Cooper

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Hospitality Law Conference 2010 - Don’t let bed bugs bite you in court: Do you know what you need to know? - Christian Hardigree & Richard Cooper