MA Lawyers Weekly: Toxic Mold Lawsuits Are Growing In Massachusetts

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Massachusetts Lawyers Weekly

October 20, 2003

Toxic Mold Lawsuits Are Growing In Massachusetts

Lawyers say that legal claims regarding toxic mold have been slow to arrive in Massachusetts, but are now generating a lot of activity that will mean more work for local attorneys.

M. Governo of Boston, a panelist at an upcoming mold seminar in Worcester, said that "there is a huge group of potential defendants in these claims" and that he is now getting at least one call a week about mold after a hot, damp summer.

He also noted the temporary closing of at least three public schools and the condemnation of a couple local homes due to recent mold infestations.

of Boston, who spoke at a recent conference on mold, advised lawyers that many experts may be needed to prove damages in mold claims, including industrial hygienists, doctors and construction experts.

She added that Massachusetts courts don't allow for punitive damage claims associated with the celebrated multi-million-dollar cases brought by Brockovich and Ed McMahon, and pointed to studies showing that the average mold claim is worth about $35,000.

But Clyde D. Bergstresser of Boston has filed a rare wrongful-death claim that could generate a substantial verdict based on the death of a child with known allergies to mold.

That case has already grown to more than two dozen parties, including building owners, property managers, ventilation contractors, physicians and government entities, and Bergstresser noted that "these cases can spread out just like mold."

Most experts agreed that such personal-injury claims can be hard to prove and suggested there's no clear link between mold and any signature illness.

D'Angelo of Lawrence said he prefers to focus on landlord-tenant cases involving claims for relocation and back rent associated with mold invasion because "the breach of warranty of habitability is clearer and easier to prove."

But Deaton of New Haven, Conn., has taken on both personal-injury and property damage claims all over New England, and he argued that there are documented links between rare toxic molds and debilitating, or even fatal, illness.

Deaton, who recently filed the first mold suits in Rhode Island, said he believes that "there will soon be a pop in mold litigation in New England," though he downplayed the theory that mold will become the "next form of asbestos."

For coverage on mold lawsuits across the nation, see "Courts, Lawmakers Tackling 'Toxic Mold'" in the Nov. 12, 2001 edition of Lawyers Weekly USA, and access all entries in the Archives section of www.lawyersweeklyusa.com with the keywords "toxic mold."

Parties And Causes

The experts agreed that mold litigation potentially entails many different parties and multiple causes of action because the source of hazardous mold can be difficult to detect and hard to remedy.

The experts noted that mold can contaminate and even destroy all kinds of building materials, including wood, sheet rock and insulation, and that people with specific allergies to mold can suffer temporary or permanent injuries.

has handled claims or rendered opinions mostly for policy holders, manufacturers of construction materials and insurance companies.

But she noted that local landlords, building contractors, home sellers and even employers have now been dragged into claims involving mold and sick building syndromes.

Other experts have handled claims involving architects, doctors, mold remediation contractors, and home and building inspectors.

Deaton noted that he is now reviewing claims in this area involving real estate brokers, roofers and engineers.

He also suggested that schools and hospitals are likely to be defendants because they house people with compromised immune systems, such as the sick, the elderly or the very young.

But Governo said that "assessing the real cause and finding the right defendants is a real problem in these claims."

He added that "there is a huge debate about what is new mold and what is old mold," and that means a fight over which parties are responsible for causing specific property damage or injuries.

agreed, and noted that mold damage can stem from problems in drainage, ventilation, poor design or construction, or even from energy efficient design that traps moisture and humidity.

In Bergstresser's wrongful death case, there are issues involving building construction, ventilation, sewage systems and even treatment of the allergic victim by doctors.

But he said that "systemic symptoms of mold injuries not resulting from allergies are very hard to prove."

Debates On Damages

Governo asserted that "property damage claims from mold are very viable, but the health claims are questionable."

He noted that the Center for Disease Control and the Environmental Protection Agency have cast doubt on any kind of link between mold and serious illness, except in the case of allergies.

"The scientific claims of illness or death resulting from mold are very susceptible to Daubert challenges," he stated, pointing to studies done by governmental agencies and research scientists.

But Deaton disagreed.

"I have epidemiologists from Yale University who can demonstrate links between specific mycotoxins and invasive lung disease," he said.

Deaton also noted that potent molds have been linked with memory loss and bleeding in the lungs, as well as deadly cases of aspergillosis associated with certain hospital infections.

He added that allergists can perform skin tests for allergies to specific molds involved in runny noses, rashes or even irreversible lung disease.

But D'Angelo contended that "there is little or no peer review on studies showing causation for a specific health malady, except for allergies and asthma."

That is why he deals largely in cases involving allergies and asthma suffered by tenants of substandard housing in the Lawrence area.

D'Angelo said he has recovered back rent, property damage expenses and relocation costs for tenants victimized by mold, and he has been successful taking those cases on a contingent fee basis.

He noted that the state's landlord-tenant laws essentially provide strict liability for failure to provide a safe and habitable home.

In one recent case, he discovered that mold had grown unabated for eight years in an apartment and eaten through the walls and the wood.

Housing Court Judge D. Kerman entered a judgment that facilitated the immediate relocation of the tenants, and within 90 days the children stopped having respiratory ailments and the father cleared up an infection on his leg that previously required hospitalization and antibiotics.

D'Angelo has also handled property damage cases against insurance companies recently, for which he charges an hourly fee.

He said that insurance companies, which have suffered some of the worst damages from bad faith cases brought in other jurisdictions, are now quick to respond to mold allegations.

But he also pointed out that some insurers explicitly disclaim responsibility for mold in their policies or take the position that mold coverage is denied by the pollution exclusion clause or construction defect provisions of a policy.

Problems Of Proof

The experts noted that mold claims are inherently complicated by problems of proof because there are many kinds of mold, many potential sources, and major difficulties in linking a particular source with a particular damage.

asserted that certified hygienists, toxicologists and doctors would be necessary to prove up a personal-injury case, while architects and engineers with expertise in mold might be necessary to prove the source of property damages or injuries.

"It is very hard to say how the water got there that caused the mold and how much damage was done when," Governo said, "so it is hard to know which insurance policy might apply to any given case."

According to D'Angelo, a mycologist is necessary to link a given mold with any particular damage.

Deaton has utilized epidemiologists, allergists, treating physicians, occupational experts and doctors to prove his claims.

"The presentation of evidence is the biggest problem in mold cases," he said.

He stressed that there are more than 100,000 kinds of mold and roughly 200 subcategories of a toxic mold known as aspergillus, and asserted that "people are often getting the wrong kinds of sampling done to prove a case."

Deaton advised lawyers to conduct outside and indoor air tests for ambient mold at different times because levels of mold rarely remain constant, and suggested that photos of all the various parts of a building may be important as well.

"You have to prove the source of the mold growth and the relevant time periods and damages," he said.

That, according to Governo, can be problematic for a number of legal reasons.

"If mold is caused by a construction defect that is more than a certain number of years old, then the statute of repose may apply," he offered for example.

added that insurance coverage may be triggered at different times, such as time of exposure, or the time of injury or the time at which the mold was manifest.

In general, experts agreed that mold poses sticky problems for lawyers, as well as claimants.

Questions or comments may be directed to the writer at jcunningham@....

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