Mold Exposure Suit in Ohio

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Ohio top court rules against plaintiffs in mold-exposure suit

By JIM PROVANCE

BLADE COLUMBUS BUREAU

COLUMBUS - Those alleging illness from mold exposure must prove

through a medical expert that the toxin can and did in fact cause the

illness, the Ohio Supreme Court ruled yesterday.

In a 6-1 decision, the court used a lawsuit filed in 2000 by 15

employees of the Ottawa County Board of Mental Retardation and

Development Disabilities against their former landlord to adopt a

two-pronged federal test that one justice declared shut the door to

the plaintiffs before their case had begun.

The employees sued the owner and former managers of the Buckeye

Building in Port Clinton, alleging that mold permeating from damp

conditions caused frequent headaches, nausea, respiratory problems,

and other symptoms. Subsequent testing revealed the presence of five

separate mold spores, one of which could have caused symptoms described.

But the defendants succeeded in convincing the county Court of Common

Pleas to grant them summary judgment on the grounds that the

employees' medical expert, a respiratory disease specialist, failed to

connect the final dots between this particular mold and ailments.

On appeal, the Toledo-based 6th District Court of Appeals revived the

case, pointing to other nonexpert evidence such as microbial testing

and medical records that warranted allowing the case to proceed.

The all-Republican Supreme Court has now reversed that decision.

" Without expert testimony to establish both general causation and

specific causation, a claimant cannot establish a prima facie case of

exposure to mold or other toxic substance,'' wrote Justice Terrence

O'Donnell for the majority. Justice Pfeifer countered there was

no need to end the case at this early stage.

" They have presented evidence on every essential element of their

claims,'' he wrote. " Whether they have presented enough evidence to

succeed at trial is meaningless at this point. They have done enough

to clear the low hurdle of summary judgment. Unfortunately, the

majority opinion has turned the low hurdle into a brick wall.''

Tom Antonini, Toledo attorney for the building owner and former

managers, said the building remains in use with new tenants and that

mold was never a pervasive problem. He said the plaintiffs' medical

expert did not physically examine the employees and did not rule out

other potential causes for their symptoms inside and outside the

workplace.

" It seems to me that, five to 10 years ago, mold seemed to be the

so-called hot tort for the time, but I think it has not taken on as

much steam as anticipated,'' Mr. Antonini said . " The court is doing

its role, in my view, of serving as gatekeeper and not allow what

amounts to junk science into the courtroom,'' he said.

The plaintiffs' Sandusky attorney, Margaret M. Murray, said

yesterday's decision raises the bar plaintiffs must clear to avoid

having their case dismissed in the first inning.

" Summary judgment is supposed to be used with a view of allowing cases

that should be tried to be tried, but not a complete bar to trying

cases,'' she said.

Contact Jim Provance at:

jprovance@...

or 614-221-0496.