Ex-tenants say mold caused ailments, death

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Published: 10.29.2007

Ex-tenants say mold caused ailments, death

Judge throws out lawsuits, fines attorney

A.J. FLICK

Tucson Citizen

The wall outside the bedroom where Ezekiel Mark Bullis

spent all five weeks of his brief life in 2001 still weeps

black mold.

Streaks of peppery mold seep from underneath slats of

siding on the two-story-high wall at The Overlook at

Pantano apartment complex, 1800 S. Pantano Road, a 443-unit

complex south of East 22nd Street.

The official cause of Ezekiel's death is listed as sudden

infant death syndrome, but his grandmother blames the mold

that infested her apartment.

" At first I thought, 'Mold can't do this to a person,' "

Bullis said. " But we went and did research, and we

found that it can. That's when we started putting two and

two together. "

On Oct. 22, Bullis returned to the Overlook, which used to

be called Eastside Place, for the first time since she

moved out in 2001.

Bullis pointed to the window sill of the second-floor

apartment where Ezekiel lived.

" It makes me mad to see toys are sitting there, " Bullis

said. " Children live there. "

Bullis and more than 100 former residents of the complex

sued the owners, Dell Loy and Randy Hansen, and their

company, Wasatch Property Management of Logan, Utah, in

several lawsuits beginning in September 2002 that were

eventually grouped together in two separate suits.

Former residents complained of numerous respiratory

problems and other ailments. In addition, within 10 days,

Ezekiel and another infant in the same apartment building

died with toxic mold in their lungs, court records said.

Medical experts on both sides of the lawsuit agreed that

both babies died of SIDS, even though the cause of death

for one infant is officially listed as " accidental

smothering. "

Pima County Superior Court Judge effectively

threw out both lawsuits, believing experts hired by the

Hansens' team of attorneys who said mold can only make

asthma worse. also ordered personal injury attorney

Harold Hyams to pay $750,000 in court fees, saying he

caused unnecessary delays.

That fine and others have marred the case and left Hyams

spending nearly as much of his time defending himself

against complaints by judges about his conduct and errors

as he has pursuing the tenants' complaints against the

apartment complex's owners and managers.

Bullis said it's who is causing unnecessary delays by

not issuing a final judgment on her lawsuit, which is

needed before Hyams can file an appeal.

" Judge said Harold made the case all about himself,

but it was Judge who made the case about Harold and

not the mold, " said Robin s, another plaintiff.

" We want the jury to decide the case, " said s. " I'm

gonna fight this till the end. We've got so much proof, but

Judge won't see any of it. "

In a motion asking to reconsider his sanction against

Hyams, legal ethics expert and attorney Mark I. on,

who was hired by Hyams' attorney defending him before the

state bar, said defense attorneys filed nearly four times

as many substantive motions, those requiring hearings or

more pleadings, as Hyams - 223 to Hyams' 62.

Hyams also was fined $20,000 by the Arizona Court of

Appeals over mistakes he made in a motion he filed in that

court challenging 's decision to dismiss punitive

damages in the first lawsuit.

Dell Loy Hansen filed a complaint against Hyams with the

State Bar of Arizona. The reason for the complaint was not

available. The Bar said it has no open investigations on Hyams and

dismissed one complaint in August. The Bar doesn't disclose

details on complaints unless probable cause to hold further

proceedings is found.

About 100 residents and their children were included in the

first lawsuit. The first blow came in May 2005, when a

dozen of the former tenants were dismissed from the

lawsuit.

, who inherited the case from another judge, ruled

against the remaining former tenants, saying the evidence

didn't support their claims.

recently issued a similar ruling in the second

lawsuit, which included about 115 residents, some of whom

moved into apartments vacated by the original group of

plaintiffs.

All of the dismissals came after Frye hearings, in which a

judge decides whether evidence from expert witnesses is

credible enough to present to a jury.

In both cases, decided that Hyams had not presented

enough evidence that mold causes more harm than worsening

asthma, though he also dismissed claims involving

plaintiffs with worsened asthma.

The Hansens and attorneys on both sides declined to comment

while the second lawsuit is still active. Hyams argued unsuccessfully in

court that an Arizona

repressed-memory case, Logerquist v. McVey, required that a

jury decide which expert testimony is credible.

Among Hyams' experts were Tucson allergy expert Dr. Mark

Sneller, a pollen and mold identification expert approved

by the American Academy of Allergy, Asthma and Immunology

who writes a syndicated column and often appears in the

national press, and Terranova of Nevada-based Terra

Nova Inc., who lectures nationally on mold remediation.

Sneller and Terranova both found " extreme " amounts of mold

at the complex.

" I was on the verge of vomiting from the moldy odors inside

these apartments, " Terranova said in his 2002 report. " I

found the apartments with the infant deaths to have the

worst mold contamination of all. "

Terranova recommended demolition of the complex.

" There's no evidence that exposure to mold causes

anything, " Wasatch attorney D. Hiles said in an

Oct. 15 hearing.

It isn't enough for the former tenants to prove that mold

was in their apartments when they lived there, Hiles said.

They must prove that mycotoxins, the poisonous substance in

mold, were present and no such testing was done, Hiles

said.

In addition, he said, none of the plaintiffs was tested for

mold allergies or reactions while they were living at the

property.

" We have no ability to establish that mold caused any

injuries, " he said.

" I was mad at them for saying there's nothing wrong with

mold, that you can't suffer any harm living in it, " said

Kuuleme s, who moved into the complex in 2000 with

her husband and three children ages 8, 9 and 12.

" We were getting sick, and it was ridiculous to be told

there was nothing wrong with us, " s said. " We did

not have these problems before the mold. "

s, Bullis and s all report similar ailments

they and their relatives contracted, including profuse

nosebleeds, asthma and respiratory infections. s and

Bullis also said they found lumps in their breasts, which

they attributed to immune systems devastated by the mold.

s blames mold for the death of one dog and

neurological problems in another.

s and other residents in the lawsuits filed some 30

complaints with the city over conditions at the Overlook.

s said as soon as her family was moved into a

temporary unit while its unit was being remediated, the

city complaint was dismissed.

Once the family returned to the remediated apartment,

s said, mold levels were even higher than before.

Other residents not involved in the lawsuits complained

also. One resident complained to the city's Neighborhood

Resources Division in January and August 2005 about a

leaking roof. Both times, repairs were ordered.

In October 2005, a complex employee told the city nothing

was fixed since the resident moved out.

A city inspector told the employee that the apartment would

have to be reinspected before it was rented again. City

records don't indicate whether the reinspection was

completed.

Mold has become a hot-button topic in recent years. Many

experts, including those from the U.S. Environmental

Protection Agency, are studying a cluster of cases in

Cleveland, where up to 27 infants developed lung ailments

while living in flooded or water-damaged houses. Nine

babies died.

" Mold can affect health, but not in everyone, " said

Kay O'Rourke, who teaches environmental health and related

subjects at the University of Arizona's College of Public

Health.

" What happens is, some people respond (to mold), some

people become hypersensitive and some not all, " said

O'Rourke, who was not involved in either lawsuit.

Innumerable species of mold are everywhere, O'Rourke said.

Most people have immune systems healthy enough to resist

any reaction.

However, those who become sensitive to mold will never get

rid of it, she said. " Certain types of mold are associated with certain

types of

disease that are problematic, " she said.

" But just because mold is in the house does not necessarily

mean a person inhaled it or was exposed to it. A host of

things have to happen in order to say that there's a direct

relationship. "

That's the crux of the stalemate in these lawsuits,

according to court documents and hearings. The Hansens

don't deny that the apartments were moldy, but that

a " host " of conditions wasn't met to prove actual harm.

Hyams said his evidence proves the conditions were met.

, obviously, disagreed.

Hyams tried to show that since the Hansens bought the

complex in 1992, they chronically neglected maintenance,

used improper techniques such as painting over mold to fix

the problems and blamed low-income residents for failing to

clean their apartments.

" Mold infestation is almost always a symptom of poor

maintenance, poor housekeeping or the two jointly, "

O'Rourke said. " It doesn't occur overnight. " The only way

to get rid of the mold is to cut off the water supply and

remove the mold with a bleach solution or replace the

affected area, she said.

s and Bullis lived in apartments the complex said

were " remediated, " but both said the mold remained and

continued to harm their families.

O'Rourke said she's often asked what residents should do if

they live in homes with excessive mold.

" You may think I'm callous, but I say, 'Move,' " O'Rourke

said. " If you live in a sick building and you don't own it

and can't control it, get the hell out of there.

" If you own it, fix it. "

In both lawsuits, plaintiffs were offered settlements. The

first was for cash in various amounts that Bullis, s

and s said didn't even begin to cover their

expenses. The second was for nothing but an agreement that

the Hansens wouldn't pursue costs of the case against them,

which exceeds several hundred thousand dollars in the first

lawsuit alone.

A handful of families accepted a settlement. Bullis, s

and s didn't.

" It's not about what we can get out of it, " Bullis

said. " Whatever we get is not going to replace what we

lost.

" But people live there now. They move in and they bring

more young children. I don't ever want anyone to experience

the loss my family has. As long as that place stands there,

I'll fight. "

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