MMH Miami Office partner Rollin Smith secured the dismissal of indemnification claims against MMH’s client, a cleaning contractor, in relation to alleged soil contamination at a Miami Beach Hotel. The Plaintiff, a mid-sized 40-room hotel on Miami Beach, sued the Defendant, a high profile restaurant and lounge, for contamination of hotel property from allegedly toxic chemicals in the effluent from cleaning activities at the restaurant that allegedly flowed onto hotel grounds. The Plaintiff’s environmental toxicology expert tested the contaminants in the hotel soil and opined they came from a degreaser chemical used in Defendant’s kitchen. Plaintiff sought to recover from the Defendant both the cost of removing contaminants from the soil under and around the hotel and personal injury damages due to health complaints of hotel residents. Based on this, the Defendant filed a third party lawsuit against MMH’s client, the cleaning contractor, seeking indemnification due to the contractor’s use of the degreaser in the kitchen.
Based on diligent investigation, including close review of the Safety Data Sheets for the degreaser product used by the cleaning contractor, MMH was able to discover and prove that Plaintiff’s toxicology expert had accidentally tested the wrong degreaser product. Rather than testing the degreaser product actually used by the cleaning contractor, the expert had inadvertently tested a different degreaser product with a virtually identical brand name manufactured by a different company. This critical error, which went unnoticed by respective counsel for Plaintiff and the Defendant, invalidated the expert report and led to the necessary and immediate dismissal of all claims against MMH’s client.