United States: Just Add Water: Growing Mold Claims

Just add water. This no longer the simple instructions for instant-noodle dinners or a packet of sea-monkeys; it is now the dangerous recipe for the alleged "new asbestos"¹ – mold.

Molds have been around since the beginning of time. The Bible even references mold remediation.² Today, however, mold is more than just a nuisance; it can be a profitable legal claim.

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 allegedly toxic to human health.³ 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.⁴

All molds can cause minor health effects, such as allergy-like symptoms, so-called toxic molds contain mycotoxins that may cause more severe health effects.⁵ Certain types of mold produce mycotoxins.⁶ 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.⁷ But, mycotoxins are generally not volatile and a disturbance is normally required to trigger exposure.⁸ Exposure to mycotoxins can occur by (1) mold spores entering the body through the respiratory tract, or (2) direct skin contact with toxic mold.⁹

Some molds have been linked to human illness or negative health effects.¹⁰ These effects can include skin rashes, running noses, eye irritation, cough, congestion, and aggravation of asthma.¹¹ 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.¹²

There are, however, three main indictors that tend to show elevated mold levels exist in indoor air:

• There are different mold species identified in outdoor verses indoor samples;
• The ranked order in which mold species are found varies between the indoor and outdoor samples;
• There is a significant increase in the concentration of one or more species of mold found in indoor samples, compared to outdoor samples.¹³

Mold cases present themselves in a variety of guises, including: personal injury,¹⁴ contractual disputes between owners and contractors in a hotel building,¹⁵ products liability,¹⁶ landlord tenant disputes,¹⁷ class action rent abatement actions,¹⁸ and fraud or failure to disclose mold in real estate disclosure documents.¹⁹ Many of these lawsuits resulted in large damage awards.²⁰

Other causes of action are available to a person who is 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 has been adversely impacted by the mold. In Gifford v. Matejka, 21 the Court held that expert testimony regarding both the presence of mold in the home, and the plaintiff 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.²² In addition, the data related on mold-related illnesses is inconclusive.²³

Further, no standards for the safe level of mold exposure exist in Washington. Other states are in the process of developing mold standards. This means that most cases turn on expert testimony regarding "excessive" mold levels.²⁴

It appears that the more specific the illness/injury alleged, the less likely that a court will admit the evidence.²⁵ But courts have allowed testimony establishing a link between mold exposure and the aggravation of asthma and allergies²⁶ or headaches, nasal congestion and asthma.²⁷

However, the plaintiff has a very sympathetic case. The case usually involves latent defects allowing water intrusion that ultimately results in mold. Photos of the mold are generally very compelling. Further, a plaintiff’s allergic symptoms are common to most people and are easily understood.

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.²⁸ The scientific theory that the expert relies upon should be generally accepted in the scientific community.²⁹ 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, should be excluded. Note, however, that a causal link can likely be established where the plaintiff alleges allergic symptoms as a result of mold exposure. Also note that the methodology may also be attacked because there are no universally accepted standard sampling procedures for testing for mold indoors.³⁰

Another common defense is the statute of limitations. Washington requires a personal injury action be brought within three years³¹ of discovery that the plaintiff was injured.³² Assuming that the plaintiff suffers from allergic reactions to the presence of mold, the plaintiff may have suffered allergic symptoms for many years.

A third defense depends on the plaintiff’s environment and goes to causation. The plaintiff has the burden of showing that the mold caused by the defendant’s alleged negligence 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 plaintiff cannot say, that they are suffering, more likely than not, from mold exposure at their home. 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.

Finally, the failure to mitigate is often a viable defense. 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.

So what needs to be done when you have a client who has mold? Don Yamamoto, of

Long Services, a local contractor who remediates mold, explained 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.³³

Once the water source is stopped, remediation can occur. New York’s Department of Health has established four cleanup standards for mold, depending on the size and type of the mold and the type of area that needs cleanup.³⁴

While mold is a growing concern to Washington residents, building owners, and construction professionals, the lack of clear scientific evidence about mold exposure and its health effects, combined with the court’s reluctance to allow "novel" scientific theories, may stunt development of this new cause of action. The "new asbestos" certainly isn’t going anywhere, and until it can be shown with certainty that mold cannot cause severe health effects the debate will continue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.