Dimitry Tsimberg, Esq.
Toxic mold - what to do now?
It would be fair to say that molds have been
around since the beginning of time, and have always posed a serious
threat to human living. The Bible even references mold and its remediation
"The LORD said to Moses and Aaron ... I put a spreading mildew
in a house in that land (Canaan). ... The priest is to order the
house to be emptied before he goes in to examine the mildew, so
that nothing in the house will be pronounced unclean. After this
the priest is to go in and inspect the house. He is to examine the
mildew on the walls, and if it has greenish or reddish depressions
that appear to be deeper than the surface of the wall, the priest
shall go out the doorway of the house and close it up for seven
Thus, even in the Biblical days, mold meant sickness
and required immediate attention.
We now know that molds are microscopic organisms
found virtually everywhere in the environment. There are over 100,000
species of mold on the Earth. Of those, 200 are allergenic and approximately
50 are toxic to human health. Mold spores are lightweight and can
be transmitted through the air. Virtually all construction materials
and furnishings can provide nutrients supporting mold growth. In
order to grow, mold needs food and water. However, only a small
amount of moisture is necessary for mold growth. Further, mold spores
are almost always present in both indoor and outdoor air.
Once a particular mold grows indoors, its spores
spread into the indoor atmosphere. Four factors govern a mold’s
impact on human health - (1) the species involved, (2) the metabolic
products that species produces, (3) the quantity and duration of
an individual’s exposure to the mold, and (4) the specific susceptibility
of the exposed individual.
All molds can cause minor health effects, such
as allergy-like symptoms, but the so-called "toxic molds" contain
mycotoxins that may cause more severe health effects. Certain types
of mold produce mycotoxins. Mycotoxins give the molds a competitive
advantage over other mold species and bacteria. Mycotoxins are nearly
all cytologic, disrupting various cellular structures such as membranes,
and interfering with vital cellular processes such as protein, RNA,
and DNA synthesis. Mycotoxins are fungal metabolites with potential
toxic effects that range from short term irritation to immunosuppression
and possibly cancer. But, mycotoxins are generally not volatile
and a disturbance is normally required to trigger exposure. Exposure
to mycotoxins can occur by (1) mold spores entering the body through
the respiratory tract, or (2) direct skin contact with toxic mold.
Some molds have been linked to human illness
or negative health effects. These effects can include skin rashes,
running noses, eye irritation, cough, congestion, and aggravation
of asthma. At this stage, no scientific evidence supports the premise
that exposure to mold can cause more severe health effects, such
as hemorrhages or brain damage. However, much research still needs
to be done and the anecdotal evidence is alarming.
There are three main indictors of elevated mold
levels in indoor air:
1. different mold species identified in
outdoor vs. indoor samples;
2. the ranked order in which mold species are found varies between
the indoor and outdoor samples;
3. significant increase in the concentration of one or more species
of mold found in indoor samples, compared to outdoor samples.
Mold cases can present themselves in a variety
of contexts, including: personal injury, contractual disputes between
owners and contractors of property, products liability, landlord
tenant disputes, class action rent abatement actions, and fraud
or failure to disclose mold in real estate disclosure documents.
Many of these lawsuits resulted in large damage awards. (See Allison
v. Fire Insurance Exchange, No. 03-01-00717-CV, 3rd Dist, Texas
Court of Appeals 2001 [affirming $4 million verdict]; Indiana Mold
Class Action $24 million settlement).
There are other causes of action available to
a mold victim. The most common is a construction defect claim, but
other claims, such as negligence, breach of contract, constructive
eviction, workman’s compensation claims, warranty claims and/or
breach of the implied warranty of quality. Further, negligence claims
may also be available against repair professionals whose faulty
repairs caused the water leak that started the mold.
However, a plaintiff has a large burden regarding
causation and the admissibility of expert opinion. In order to prevail
on a mold exposure claim, the plaintiff must show that their health
and/or property has been adversely impacted by the mold. Usually,
expert testimony regarding both the presence of mold in the home,
and the plaintiff's suffering health effects while in that home,
is sufficient evidence of causation to defeat the defendant’s summary
Currently there is no test that can definitively
prove or disprove fungal syndrome and false negative tests are not
unusual. In addition, the data related on mold-related illnesses
is inconclusive. Further, no standards for the safe level of mold
exposure exist in many states, and other states are just in the
process of developing mold standards. This means that most cases
turn on expert testimony regarding "excessive" mold levels.
Strangely, it appears that the more specific
the illness/injury alleged, the less likely that a court
will admit the evidence (e.g., where an expert tried to link mold
to laryngeal cancer). But courts have allowed testimony establishing
a link between mold exposure and the aggravation of asthma and allergies
or headaches, nasal congestion and asthma.
It should be noted that the plaintiff has a
very sympathetic case. The case usually involves latent (not readily
apparent) defects allowing water intrusion that ultimately results
in mold. Photos of the mold are often disgusting and generally very
compelling. Further, a plaintiff’s allergic symptoms are common
to most people and are easily understood.
How Insurance Companies Defend
The most obvious defense to a mold claim is
to attack the science of mold. Any expert’s testimony must be relevant
to an issue in the case and may not rest on "junk science." The
scientific theory that the expert relies on must be generally accepted
in the scientific community. As discussed above, the scientific
community has not reached a conclusion regarding mold exposure causing
severe adverse health effects. Therefore, any expert that
wishes to testify about a correlation between significant injuries
and exposure to mold, could potentially be excluded upon a defense
motion. However, a causal link can likely be established where the
plaintiff alleges allergic symptoms as a result of mold
exposure. Also, the methodology may be attacked because there are
no universally accepted standard sampling procedures for testing
for mold indoors. But there are credible articles published, like
the one here.
Another common defense is the statute of limitations.
California requires a personal injury action to be brought within
two years of discovery that the plaintiff was injured (other states
may be 1 year or 3 years or longer). Assuming that the plaintiff
suffers from allergic reactions to the presence of mold, he/she
may have suffered such symptoms for many years. You can be sure
the defense will seize on that opportunity to argue that the statute
of limitations started running when the symptoms first arose. However,
the plaintiff may not have known the cause of his/her maladies (mold
exposure) until later, and under the "delayed discovery" rule in
California, it could be argued that plaintiff's claim "accrues"
only upon discovery of the "cause" (i.e. that toxic mold is responsible).
An expert (e.g. doctor, contractor) may show that the mold issue
was not reasonably known to the plaintiff and was actually discovered
by the expert.
A third defense likely to be used depends on
the plaintiff’s environment and goes to causation. The plaintiff
has the burden of showing that the defendant’s negligence (in creating
the mold or failing to remediate it) caused their injuries. If the
court allows evidence of mold testing, testing other environments
such as the plaintiff’s work place, gym (or other places they frequent)
may show the plaintiff is exposed higher levels of mold at those
places. Therefore (the argument goes), the plaintiff cannot say,
that he/she is suffering, more likely than not, from mold
exposure at their home. This argument can be undermined, if it can
be shown that other people coming in contact with plaintiff's mold-infested
premises (which have different lifestyles) suffered similar maladies.
Further, if the plaintiff is allergic to other
environmental allergens, such as pet dander, pollen, or dust mites,
their doctor may not be able to testify that their symptoms are,
more likely than not, caused by the mold exposure. This is where
obtaining proper medical care (from a doctor that knows something
about mold) is critical.
Finally, the failure to mitigate (i.e. avoid
or reduce the plaintiff's damages) is asserted as a defense virtually
in every case. Once a person is no longer exposed to mold their
allergenic symptoms generally cease. This is in large part because
mold spores produce an acute and not a chronic illness. The argument
always made is "why didn't you just move?" There can be many legitimate
answers to this (such as the landlord interfering with a tenant's
ability to leave), but it appears to be a very powerful and convincing
argument in front of the jury.
Cleaning Up Mold
So what needs to be done when you have mold?
Experts in this area say that remediating mold is becoming a common
solution. It is likely that mold remediation will continue to be
an important aspect of his work as more people become aware of the
molds in their indoor environment.
Currently there is no standardized cleanup protocol
in industry. Further, no safe levels of mold spores have been established.
The most important aspect of eliminating mold exposure is to stop
the water. A thorough cleanup, drying, and removal of water damaged
materials will usually limit or prevent mold growth.
Once the water source is stopped, remediation
can occur. New York’s Department of Health has established cleanup
standards for mold, depending on the size and type of the mold and
the type of area that needs cleanup. While these standards are not
binding on other states, they are certainly instructive. To locate
the mold, a professional mold inspector can be used (and there is
now some anectodal evidence that trained dogs can help sniff
out the mold).
This post is for educational and information purposes only. It is
not legal advice on any particular case, and merely a general opinion
of one California lawyer. You should not rely on it without consulting
a competent attorney in your area about your specific case and facts.
It is not intended to, and shall not, create an attorney-client
relationship. So, be happy you got some free info and use your grey
Lawyer - got a question? Post your
case or legal issue for FREE and receive e-mail responses from
Articles - read articles written by
attorneys about a variety of legal issues.
Issues - 15 things every business
owner should think about, obtain legal advice on, and have an
attorney ready to address and resolve.