Menerick et al v. Salem Heritage, LLC et al

Filing 50

OPINION and ORDER denying Motion to Exclude 38 ; denying 40 Motion for Summary Judgment. Signed by Senior Judge James P. Jones on 8/29/2024. (flc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
CHRISTOPHER MENERICK, ET AL.,
Plaintiffs,
v.
SALEM HERITAGE, LLC, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 1:23CV00010
OPINION AND ORDER
JUDGE JAMES P. JONES

W. Bradford Stallard and Wade W. Massie, PENNSTUART, Abingdon, Virginia,
for Plaintiffs; Shawn A. Voyles and Paul R. Schmeding, MCKENRY DANCIGERS
DAWSON, P.C., Virginia Beach, Virginia, for Defendants.
Christopher and Amy Menerick hired Salem Heritage, LLC (Salem Heritage
or the Company)

a North Carolina entity in the business of renovating and

restoring windows, shutters, and doors

to restore the windows in a pre-Civil War

residence in Abingdon, Virginia, that the Menericks had recently purchased.
Because of its age, the structure likely contained lead-based paint (LBP), a hazardous
substance.1 The Menericks claim in this lawsuit against Salem Heritage and two of
its employees that
1

its work caused

Spending time or living in homes with LBP can result in harm if the paint breaks
down and forms dust-borne lead particles, which then can be breathed or swallowed. Lead
exposure may cause high blood pressure and brain, kidney, and reproductive health issues
in adults and may be a carcinogen. Children younger than six are especially vulnerable to
lead poisoning, which can affect mental and physical development. U.S.
of Health
& Human Servs., Agency for Toxic Substances & Disease Registry, Lead - ToxFAQs
for Lead (2020), https://www.atsdr.cdc.gov/toxfaqs/tfacts13.pdf. While these facts are not
all contained in the present record, I can take judicial notice of them. Fed. R. Evid. 201.

the release and dispersal of LBP dust into the house. Following discovery, the
defendants have moved for summary judgment, primarily asserting that the
Menericks cannot prove that the Co
damages claimed. Their argument in this regard is that the sole expert witness for
the Menericks cannot opine as to possible alternative sources of the contamination.
Alternatively, and for the same reason, the Company moves to preclude the
testimony at trial of the expert witness in question.
The issues have been briefed and argued and are ripe for decision. Based upon
the present record

, I find that both

the Motion for Summary Judgment and the Motion to Exclude must be denied.
I.
The court has subject-matter jurisdiction based on the diversity of citizenship
and amount in controversy. 28 U.S.C. § 1332. A federal court exercising diversity
jurisdiction must apply the substantive law of the highest court of the state in which
it sits. Wells v. Liddy, 186 F.3d 505, 527 28 (4th Cir.1999). Otherwise, federal
procedural rules will apply. Rowland v. Patterson, 852 F.2d 108, 111 (4th Cir.
1988).

genuine dispute as to any material fact and the movant is entitled to judgment as a
When ruling on a motion for summary
-2-

judgment, the court must view the evidence and justifiable inferences therefrom in
the light most favorable to the opposing party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).

Id. at 248.
is no issue for trial unless there is sufficient evidence favoring the nonmoving party
Id. at 249.
Id.
at 249 50 (citations omitted).
In regard to the Motion to Exclude, Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), provides the basic analytical framework for determining
the admissibility of expert testimony. Under Daubert, the court acts as a gatekeeper
by ensuring that any expert testimony

Id. at 589.

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141
(1999) (cleaned up). The trial court
and the court

s
Id. at 150 (internal quotation

marks and citations omitted). More generally, cases after Daubert have shown that
-3-

702 advisory committee s note to 2000 amendment.
s role as gatekeeper is not intended to serve as
Id. (quoting United States v. 14.38 Acres, 80
F.3d 1074, 1078 (5th Cir. 1996)). As noted in Daubert

cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof are the
509
U.S. at 596.

Under Virginia law, a proximate cause of an event is an act or omission that
in natural and continuous sequence produces the event, and without which that event
would not have occurred. Ford Motor Co. v. Boomer, 736 S.E.2d 724, 731 (Va.
2013) (explaining that proximate cause is a necessary antecedent of injury). Under
Virginia law, there may be more than one proximate cause of an injury. Williams v.
Le, 662 S.E.2d 73, 77 (Va. 2008). It is not required that a plaintiff
act, claimed to have been the proximate cause of a certain result, was the only
cause.

Schools v. Walker, 47 S.E.2d 418, 423 (Va. 1948) (quoting Chesapeake &

O. Ry. Co. v. Wills, 68 S.E. 395, 397 (Va. 1910)).
II.
The following are undisputed material facts presented by the submissions of
the parties, or where adequately disputed, resolved against the moving parties.

-4-

The home in question is thought to have been originally built in 1827 or 1828.
The property includes three out-buildings near the home. The Menericks have three
young children, and Mrs. Menerick was pregnant with their third child when they
moved in after the purchase. At the closing on March 4, 2021, the seller provided
the Menericks with a disclosure, as required by law, that he did not know of any
lead-based risk in the home.
The Menericks did not seek an investigation of any possible lead hazards,
although they assumed that LBP would be present because of the age of the house.
They did obtain a general home inspection by a licensed inspector. His report prior
to the closing recommended among other things, repair of windows with cracked
glass and broken counter-balance cords. He also reported that in the interior of the
recommend
repair/testing.

Mot. Ex. 6, at 17, ECF No. 41-6. However, the

Menericks had no repair work or testing done prior to

.

After the Menericks had lived in the house for several months, they sought an
contractor for renovation of the

windows, including new glass where needed

and other refurbishing, in order to make the house more energy efficient. Though
the internet, they hit upon the defendant Salem Heritage, which had represented itself
as renovating windows in older homes.

-5-

In April of 2022, an employee of the Company, defendant Greg Hunter,
visited the home to determine the scope of the project. He represented to the
Menericks that most of the restoration work on the windows would be done outside

Amy Menerick Aff. 2, ECF No. 44-1. He also advised them that
paint would be minimal and that [the Menericks] did not need to cover anything,
Id.
Another employee, defendant Matt McFatter, made similar representations. The
Menericks were not advised that Salem Heritage did not have a Virginia license.
Based upon these promises, the Menericks entered into an oral contract with
the Company to perform the work. The restoration started in July of 2022. However,
in spite of the fact that there was no dust in the house when it was purchased, the
massive amount of visible dust. Br. Supp. 102-03, ECF No. 411. The Menericks would clean the dust off, and it would return. The workers walked
through the home without protective gear, such as booties, to use the bathroom. A
worker was observed by Mr. Menerick scraping and sanding window frames in the
yard with the windows open, producing paint dust that entered the house. Id. Ex. 2,
Christopher Menerick Aff. 5, ECF No. 44-2.
On August 31, 2022, while work on the windows by Salem Heritage was
ongoing, a blood test revealed that

still an infant, had a
-6-

positive lead level. On the advice of their pediatrician, the Menericks immediately
moved out of the home and stopped the work. The pediatrician also advised the
local health officials of this finding.

A lead risk assessor with the Virginia

Department of Health performed an Environmental Intervention Blood Lead
Investigation (EIBLI). The EIBLI report showed lead hazards were in the home,

of numerous rooms. Id. Ex. 12, at 3, ECF No. 41-11. As a result, the plaintiffs were
required by the Virginia Department of Health to hire at their expense a firm licensed
and certified to conduct lead abatement of the whole house.
The Menericks have obtained an expert, Chris J. Chapman, a licensed LBP
inspector and risk assessor.

Mr. Chapman is of the opinion that the lead

that the Company had violated various Environmental Protection Agency
regulations protecting against the hazards of lead in construction, which violations
resulted in this contamination.
III.
The Complaint asserts the following causes of action:
Count I against Salem Heritage for breach of contract;
Count II against all three defendants for negligence;
Count III against all three defendants for negligence per se for
violation of lead paint statutes and regulations;
-7-

Count IV against all three defendants for negligence per se for
violation of licensing laws;
Count V against all three defendants for fraud; and
Count VI against Salem Heritage for violation of the Virginia
Consumer Protection Act.
Compl., ECF No. 1.
The grounds for summary judgment asserted as to all of these causes of action
are the same

that without the testimony of an expert, there is inadequate proof of

the cause of the alleged lead contamination or any damages resulting from it, and
sufficient because he has not
considered any other alternative causes for the LBP dust in the home.
defendant

The
the

peeling and deteriorating paint throughout the home in which Plaintiffs lived for 18
Reply Br. 1, ECF No. 47.
I disagree with this interpretation of Mr. Chap

expected testimony. In

fact, he opines
caused by Salem Heritage . . . would have required an abatement regardless of any
pre-

Ex. 4, Chapman Aff. ¶ 7,

ECF No. 44-4. Moreover, he states under oath that
[t]he highly elevated levels of lead yielded in some of the testing by the
health department are more likely than not a result of the more recent
activities of Salem Heritage. The higher values would indicate that lead
-8-

dust was at a higher level than would have been normally be [sic]
expected present if it were simply dust arising from the existing normal
conditions. This especially true since, to my knowledge, the Menericks
did nothing to disturb the lead paint that would have been present in the
Id. ¶ 11. Of course, at trial the

expert,

will be subject to cross examination and any contrary evidence, but on this record I
am unable to grant summary judgment.

IV.
The defendants also
their own contributory negligence and assumption of the risk. Such defenses are
normally matters for the jury. In addition, as argued by the plaintiffs, it has not been
indisputably shown at this point that had the Menericks sought a lead investigation
earlier, it would have shown the need for abatement prior to the
Finally, the defendants request that the court strike any claim for punitive
damages. However, based on the present record, I will not preclude that remedy at
this point.2

2

I have also considered other passing grounds asserted by the defendants but find them
unavailing.
-9-

V.
For the reasons stated, it is ORDERED

Chapman, CIH, ECF No. 38, are DENIED.
ENTER: August 29, 2024
/s/ JAMES P. JONES
Senior United States District Judge

-10-