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Mold Worries Not Easy To Prove: Too Bold To Call It Toxic Mold
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01/16/2005
Mold litigation is growing, but what can you really expect if you bring a lawsuit? Mold has become a major concern for home & property owners because of the concern over exposure to mold. Many reports in the media have referred to mold as the next asbestos. Celebrities such as Ed McMahon and huge resorts in Las Vegas and Hawaii have had problems with mold and sued the architects and builders. But if you decide mold is effecting your health, better be ready to hunker down to make your case.
Mold is often suspected by building occupants of causing toxic health effects. Yet, the problem with claiming personal injury from mold is that there is no recognized method for detecting mold toxins (called mycotoxins) in either the body or the air. Consequently, science has no way of knowing how much mold exposure is too much. There is an absence of published research on the dosage of specific airborne mycotoxins that correlates with specific health effects. What is known is that mold secretes Mycotoxins as a defense mechanism. These mycotoxins are suspected of causing toxic health problems. Ultimately, sampling and analytical techniques must be developed for specific airborne mycotoxins so that a dose-response relationship can be developed.*
So are Americans just imagining mold is affecting them? No. Scientifically there are verifiable health effects. According to the Committee on Health Effects of Indoor Allergens, ?[molds] are most often associated with allergic disease.? Allergic effects, however, are not the same as toxic effects but are still dangerous.*
Asthma and other allergic responses are known to become hard-wired after long-term exposure to the allergen. After being exposed consistently, ?[a] genetically susceptible individual is exposed to an allergen and becomes immunologically sensitized. At this stage the person is asymptomatic, but the sensitization may be detected by skin tests or laboratory tests. Over time, a proportion of sensitized individuals will develop one of a group of allergic diseases. Exposure to allergen is understood to be a major factor at each stage? of the development of allergic diseases.* Obviously a home or commercial building with a significant mold problem is designed for long-term occupancy and therefore exposure of its occupants can cause health problems.
In terms of litigation, allergic mold has been recognized by state courts such as in Nebraska that allowed evidence of allergic disease to go to the jury.** Therefore, mold prevention in design and construction should be undertaken to prevent future personal injury litigation. But toxic mold has been rejected by the courts so far, such as in Texas? Ballard case. This famous case initially awarded $32M, but that was reduced to only about $4M. The ultimate award was not made because of personal injury due to mold, but because of contract issues with her insurance company. ***
So what about comparisons of mold to asbestos litigation? The comparison is almost certainly an overstatement for several reasons. First, asbestos is a product liability issue. Generally speaking, a building is not a product. Instead a building is a cobbled together structure made up of thousands of products that form assemblies and fixtures. In most states, construction is a service, not a product. Consequently, the real issue is property damage and whether the building lived up to its intended purpose. The building might meet the local code, but did it do what the owner expected under the contract they signed for its construction. If the building smells bad, is growing mold, and generally going through accelerated decomposition, then a lawsuit may be looming.
*Committee On Health Effects Of Indoor Allergens, Indoor Allergens: Assessing And Controlling Adverse Health Effects 110 (Andrew M. Pope, Roy Patterson & Harriett Burge, Editors, Institute Of Medicine, National Academy Press 1993), pp.46-51. **Mondelli v. Kendall Homes Corp., 262 Neb. 262, 281 [2001] ***Ballard v. Fire Insurance Exchange, 98 S.W.3d 227, 265 (2002).
