Ferrera v. Terminex International Inc.

Negligence

Los Angeles County

Superior Court Judge Norman P. Tarle

$8 million

HOFFMAN, BREITER, CHANCE

Plaintiff's Lawyers: Law Offices of Brian J. Breiter LLP, Brian J. Breiter, Chance J. Pardon; Steve A. Hoffman, Los Angeles

Defense Lawyers: Hinshaw & Culbertson LLP, David J. Alfini, Frederick J. Ufkes

During closing arguments in a trial over allegations a beauty supply employee lost his sense of smell and taste during a roach extermination at the Starbucks next door, plaintiff's attorney Brian J. Breiter assumed the role of a game show host.

He ducked out of Los Angeles County Superior Court Judge Norman P. Tarle's courtroom for a moment, returning in the voice of a "cheesy" TV host to mock Terminex International Inc.'s defenses.

"I was taking a huge risk by doing that, but it was true that their ridiculous defense was laughable," Breiter said in a telephone interview.

Breiter, who is also a professional actor, tried to undermine the defense but also to emphasize the damage caused to his client, Atlas Ferrera, suffered after inhaling chemicals while using the store's restroom.

He asked for $15 million in damages and the jury came back with an $8 million verdict in the March trial. Ferrera v. Terminex International Inc. et al., BC657474 (Los Angeles Co. Sup. Ct, filed April 27, 2017).

Two months later, however, attorneys for Terminex persuaded Tarle to grant their motion for a new trial because the judge allowed testimony from an expert witness he said he should have excluded.

"This court should have acted but failed to act," Tarle wrote.

Breiter and Terminex's attorneys, David J. Alfini and Frederick J. Ufkes of Hinshaw & Culbertson LLP, have each filed appeals that will be considered by the 2nd District Court of Appeal. Briefs will be filed later this year.

The incident started when Ferrera, who also works as a makeup artist, was using the restroom at Larchmont Beauty Supply at 7 p.m. in May 2015.

"All of the sudden, the room starts to fill up with white smoke," Breiter said. "He's inhaling this smoke ... coughing, his eyes are burning."

The neighboring businesses of the planned extermination spray at Starbucks were not informed of the plans, he added.

Terminex "didn't check if the wall had insulation or what was on the other side of the wall," Breiter said.

Ferrera was a "fragrance virtuoso," who used his keen sense of smell and taste both in his work and to enjoy gourmet meals. All of that is gone, he asserted during the trial.

"There's no treatment in the future that can help him," Breiter said.

Defense attorneys argued the plaintiffs' attorneys -- Breiter, Chance J. Pardon, and Steve A. Hoffman -- failed to establish Ferrera was exposed to the chemicals, according to court papers.

Alfini declined to comment on the trial or pending appeal seeking a defense judgment notwithstanding the verdict.

Breiter said he is confident the state appellate court will overturn Tarle's decision to grant the defense motion for a new trial.

-- Craig Anderson