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 days." (Lev.14)

Thus, even in the Biblical days, mold meant sickness and required immediate attention.

Modern Science

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 Claims

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 judgment motion.

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 Mold Claims

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 matter!

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