United States: Dealing With Mold Exposure Claims

Mold claims once represented a known and manageable risk to property owners. Personal injuries from mold were difficult to prove and damages were generally limited to repair and replacement of damaged structures. However of late, toxic mold has become a tort du jour. There have been numerous large verdicts for plaintiffs in mold cases. People discovering mold in their home or at work are increasingly concerned that it poses a significant threat to safety. As a result the likelihood of a landowner encountering a claim for personal injury damages has grown.

Recently, the public has been exposed to a large amount of information about mold, much of it of questionable value. Internet websites purporting to educate the public about mold can make outlandish claims. One website informs us: "Did you know that – 50% of homes contain problem mold? A new study attributes nearly 100% of chronic sinus infections to mold? A 300% increase in the asthma rate over the past 20 years has been linked to molds?" The hype is not limited to the web. Erin Brockovich, with substantial media fanfare, testified before the California Legislature on the topic of mold in homes. Following her testimony, the Legislature passed into law the "Toxic Mold Protection Act of 2001."

Despite public perceptions, causation issues remain unresolved. A Center for Disease Control study reports "[t]here are very few case reports that toxic molds (those containing certain mycotoxins) inside homes can cause unique or rare, health conditions such as pulmonary hemorrhage or memory loss. These case reports are rare, and a causal link between the presence of the toxic mold and these conditions has not been proven." Simply identifying a potentially toxigenic fungus in a building does not indicate that occupants have actually been exposed to dangerous levels of mycotoxins. Significantly, there are currently no legal exposure limits for molds.

The Toxic Mold Prevention Act of 2001 should begin to resolve this issue because it requires the California Department of Health Services to develop guidelines setting such limits. If these guidelines are developed, it should bring sound science to bear on mold issues. However, until then, the number and severity of mold claims can be expected to increase.