IN THE DISTRICT COURT OF APPEAL OF FLORIDA

[Guest guest]

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA, THIRD DISTRICT

Case No. 3D03-403

ARCHSTONE-SMITH OPERATING TRUST, et al.,

Defendants/Appellants.

vs.

RACHEL J. HENRIQUES, et al.,

Plaintiffs/Appellees,

http://www.uschamber.com/NR/rdonlyres/en63nczwnki5wqpkbav52j6syhtadxo

h2za2uutswadk7vknyupynipqg4q2xcj2psoif2w6l3h7mp/ArchstoneOperati

ngTrustetalvHenriquesetal.pdf

__________________________________________________________________

BRIEF OF AMICI CURIAE THE CHAMBER OF COMMERCE OF THE

UNITED STATES, THE NATIONAL MULTI HOUSING COUNCIL, THE

NATIONAL APARTMENT ASSOCIATION, THE NATIONAL LEASED

HOUSING ASSOCIATION, THE BUILDING OWNERS AND MANAGERS

ASSOCIATION INTERNATIONAL, THE NATIONAL ASSOCIATION OF

INDUSTRIAL AND OFFICE PROPERTIES, THE FLORIDA

APARTMENT ASSOCIATION, THE NATIONAL ASSOCIATION OF

REAL ESTATE INVESTMENT TRUSTS, INC., AND THE REAL ESTATE

ROUNDTABLE IN SUPPORT OF DEFENDANTS/APPELLANTS

__________________________________________________________________

Filed by leave of Court

ON APPEAL FROM THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

Robin S. Conrad Kantor, Florida Bar No. 0111901

NATIONAL CHAMBER Evan M. Tager

LITIGATION CENTER, INC. Carl J. Summers

1615 H Street, N.W. MAYER, BROWN, ROWE & MAW

Washington, D.C. 20062 1909 K Street, N.W.

(202) 463-5337 Washington, D.C. 20006

(202) 263-3000

i

TABLE OF CONTENTS

Page

TABLE OF

AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . iii

IDENTITY AND INTEREST OF

AMICI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. . . . . . . . . . . . . . . . . . . . . . . . 1

I. CASES INVOLVING ALLEGED HARM FROM INDOOR MOLD

ARE PARTICULARLY UNSUITED FOR CLASS ACTION

TREATMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . 1

A. The Growth Of Mold

Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

B. The Growth Of

Mold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. . . . . 4

C. The Class Action Is Not An Appropriate Vehicle For Bringing

Mold-Exposure Claims Because The Science Of Mold Does

Not Permit Class-wide Proof And Individual Issues Will

Predominate . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . 8

1. The amount and type of mold present in a building unit

and the causes of that mold growth vary from unit to unit . . . . 9

2. The existence, amount, and type of mycotoxins produced

are idiosyncratic to each instance of mold growth . . . . . . . . .

10

3. The exposure of building occupants to mold and/or

mycotoxins — even when they are present — depends on

the specific environment and activities of the occupants . . . . 11

4. There is no common effect of mold exposure: some

people have no reaction to even elevated levels while

others are hypersensitive to small

doses . . . . . . . . . . . . . . . . . 12

5. Symptoms associated with mold allergies are nonspecific

and may be caused by many environmental and

health

factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . 14

TABLE OF CONTENTS

(continued)

Page

ii

6. Allergic reactions to mold may be exacerbated by a

person's behavior, work, or other

factors . . . . . . . . . . . . . . . . 15

7. Individuals who suffer from asthma may experience

varying responses to mold in the air, but asthmatic

symptoms can be caused or exacerbated by many factors . . . 15

8. Individual testing is necessary to identify the source of a

mold

infection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . 17

9. Because there is no proven link between indoor mold

exposure and health effects other than exacerbation of

existing allergies and asthma, to the extent any member

of the class seeks to recover for any other health effects,

there is no conceivable way in which causation could be

established on a class-wide

basis . . . . . . . . . . . . . . . . . . . . . . 17

II. THIS CASE CANNOT BE TRIED AS A CLASS ACTION

WITHOUT VIOLATING THE DEFENDANTS' DUE PROCESS

RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. . . . . . . . . . . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. . . . . . . . . . . . . . . . . . . . . . 20

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Braun v. , 827 So. 2d 261 (Fla. 5th DCA

2002) . . . . . . . . . . . . . . . . . . 18

Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir.

1996) . . . . . . . . . . . . . 20

v. Henry Phipps Plaza South, No. 116331/98

(N.Y. Sup. Ct. Aug. 8,

2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . 3

Liggett Group, Inc. v. Engle, No. 3D00-3400

(Fla. 3d DCA May 21,

2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. 9, 20

Lindsey v. Normet, 405 U.S. 56

(1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. . 19

Wheeler v. AvalonBay Communities, No. B 153535,

2002 Cal. App. Unpub. LEXIS 10906

(Cal. App. Nov. 22,

2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . 3, 4

STATUTES

Fla. R. Civ. P. 1.220(

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . 1, 18

MISCELLANEOUS

1 American Academy of Allergy, Asthma, and Immunology,

The Allergy Report (2001), available at

http://www.theallergyreport.org/

reportindex.html . . . . . . . . . . . . . . . . . . . 16

Am. Coll. of Occupational & Envtl. Med., Evidence Based

Statements: Adverse Human Health Effects Associated

with Molds in the Indoor Environment 1 (Oct. 27, 2002),

available at http://www.acoem.org/guidelines/pdf/

Mold-10-27-

02.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. . . . . . . . passim

TABLE OF AUTHORITIES

(continued)

Page(s)

iv

Harriet M. Ammann, Washington State Department of Health,

Is Indoor Mold Contamination a Threat to Health?,

at http://www.doh.wa. gov/ehp/oehas/mold.html

(last visited May 21,

2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . 12, 14

K. Bush and W. Yunginger, Standardization of

Fungal Allergens, 5 Clin. Rev. Allergy 3

(1987) . . . . . . . . . . . . . . . 6, 14, 15

Dean Calbreath, Increasingly Expensive Mold Infestation

Claims Wreaking Havoc, Copley News Service, Feb. 18,

2003 . . . . . . . . 2, 3

California Department of Health Services, Stachybotrys Chartarum:

A Mold That May Be Found in Water-Damaged Homes,

at http://www.dhs.ca.gov/ehib/ehib2/topics/

stachygp00.doc (Nov.

2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. 12, 14

Centers for Disease Control and Prevention, Questions and Answers

on Stachybotrys Chartarum and Other Molds,

at http://www.cdc.gov/nceh/airpollution/mold/stachy.htm

(last reviewed Nov. 30,

2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

passim

Conlin, Is Your Office Killing You? Sick Buildings

Are Seething with Molds, Monoxide — and Worse,

Business Week, June 5,

2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. . . . 2

EPA, Indoor Environments Division, Mold Remediation in

Schools and Commercial Buildings (2001),

available at http://www.epa.gov/iaq/molds/graphics/

moldremediation.pdf (last updated June 25,

2001) . . . . . . . . . . . . . . . passim

Envtl. & Occupational Disease Epidemiology, N.Y. City Dept. of

Health & Mental Hygiene, Facts About Mold, at

http://www.ci.nyc.ny.us/html/ doh/html/epi/epimold.html

(Feb.

2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . 5

TABLE OF AUTHORITIES

(continued)

Page(s)

v

Guido Fischer & Wolfgang Dott, Relevance of Airborne

Fungi and Their Secondary Metabolites for

Environmental, Occupational and Indoor Hygiene, 179

Arch Microbiol 75

(2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,

14, 15, 17

48 Hours: This Mold House (CBS television broadcast, Mar. 2,

2000) . . . . . . . . . 2

Rafa» L. Górny, Fungal Fragments as Indoor Air Biocontaminants,

68 Applied & Envt'l. Microbiology 3522

(2002) . . . . . . . . . . . . . . . . . . . . 12

J. Henning & A. Berman, Mold Contamination:

Liability and Coverage Issues: Essential Information

You Need to Know for Successfully Handling and Resolving

Any Claim Involving Toxic Mold, 8 Hastings W.-NW. J.

Envtl. L. & Pol'y 73

(2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. . . . . . 5

Dennis Hevesi, The Turmoil over Mold in Buildings, N.Y. Times,

Mar. 23, 2003, § 11, at

1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . 2

D.M. Kuhn & M.A. Ghannoum, Indoor Mold, Toxigenic Fungi,

and Stachybotrys Chartarum: Infectious Disease Perspective,

16 Clinical Microbiology Reviews 144

(2003) . . . . . . . . . . . . . . . . . . passim

Minnesota Department of Health, Indoor Mold: Hazard Identification

and Control, at http://www.health.state.mn.us/divs/eh/

indoorair/mold/ hazardid.html (last updated April 14,

2003) . . . . . . . . 13, 14

Sweeney & Sheri A. Mullikin, The `Mold Monster':

Myth or Menace?, 1 Mealey's Litig. Rep.: Mold 1

(2001) . . . . . . . . . . . . . 2

Payne et al., Latest Developments in Mold Exposure

Litigation, 17-Fall Nat. Resources & Env't. 132

(2002) . . . . . . . . . . . . . . . . 7

TABLE OF AUTHORITIES

(continued)

Page(s)

vi

Coreen A. Robbins et al., Health Effects of Mycotoxins in Indoor

Air: A Critical Review, 15 Applied Occupational &

Envtl. Hygiene 773

(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. . 7, 8, 10

State of the Science on Molds and Human Health: Hearing

Before the Subcomms. on Oversight and Investigations

and Housing and Community Opportunity, House Comm.

on Financial Services, 107th Cong. (July 18, 2002),

available at 2002 WL 1587891

(F.D.C.H.) . . . . . . . . . . . . . . . . . . . . passim

Texas Medical Association's Council on Scientific Affairs,

Black Mold and Human Illness, CSA Report 1-I-02, at 4

(Sept. 2002), available at http://www.texmed.org/has/

CSA Black

Mold.doc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. . . . . . . . . . . . 7

The Truth About Mold, 28 Harv. Health Letter 3 (Harv. Med. Sch.),

Jan. 2003, at

2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . 2, 9, 10, 11

United States Centers for Disease Control and Prevention,

Update: Pulmonary Hemorrhage/Hemosiderosis Among

Infants – Cleveland, Ohio, 1993-1996, 49 Morbidity &

Mortality Wkly. Rep. 9

(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. . . . 2

Yehudith Assouline-Dayan et al., Studies of Sick Building

Syndrome. IV. Mycotoxicosis, 39 J. of Asthma 191

(2002) . . . . . . . . 7, 8, 15

IDENTITY AND INTEREST OF AMICI

Amici submit this brief pursuant to the Court's order of March 11,

2003. Amici

are national and state trade organizations representing, among

others, developers,

financiers, architects, builders, owners, and managers of

residential, commercial, and

industrial buildings. Amici believe that the certification decision

at issue here not

only violates the rights of the defendants in this case, but also

threatens those of their

members who have various interests in multi-occupant buildings

located in Florida.

The trial court's order broke legal ground by certifying the first

ever singlebuilding/

multiple-occupant mold-exposure class action in the country. Unless

the

class certification is reversed, other Florida courts may do the

same, and moldexposure

class action filings will multiply. Accordingly, the amici have a

strong

interest in explaining to this Court why a single-building/multiple-

occupant moldexposure

case cannot be litigated as class action within the boundaries of

fairness and

due process established by Florida Rule of Civil Procedure 1.220(

(3) and the

Fourteenth Amendment.

ARGUMENT

I. CASES INVOLVING ALLEGED HARM FROM INDOOR MOLD ARE

PARTICULARLY UNSUITED FOR CLASS ACTION TREATMENT.

A. The Growth Of Mold Litigation.

People have lived with mold as long as they have lived indoors.

Until the mid-

1990's, the close and constant association between people and indoor

mold spawned

1 This explosion was caused by a combination of misleading medical

reports,

media hype, and the possibility of large verdicts in what promised

to be an enormous

number of mold cases. " The current concern about toxic mold really

started several

years ago after federal health officials blamed mold in dilapidated

homes in Cleveland

for a cluster of 10 cases of pulmonary hemorrhage (bleeding in the

lungs). But the

report was later retracted when outside reviewers found critical

mistakes in the

investigation. " The Truth About Mold, 28 Harv. Health Letter 3

(Harv. Med. Sch.),

Jan. 2003, at 2; see also United States Centers for Disease Control

and Prevention,

Update: Pulmonary Hemorrhage/Hemosiderosis Among Infants -

Cleveland, Ohio,

1993-1996, 49 Morbidity & Mortality Wkly. Rep. 9, 180 (2000)

(discussing the

retraction of the original report). Although the Cleveland report

was retracted, the

popular media became infatuated with the possibility that mold, an

organism we all

live with, might be dangerous or even deadly. See, e.g., 48 Hours:

This Mold House

(CBS television broadcast, Mar. 2, 2000); Conlin, Is Your

Office Killing

You? Sick Buildings Are Seething with Molds, Monoxide — and Worse,

Business

Week, June 5, 2000, at 114. This media attention — along with a few

large highprofile

verdicts — sparked an epidemic of mold-litigation that has swept

across the

country. See, e.g., Sweeney, supra, at 1-2. Today, " it is almost

impossible to follow

local or national news without learning about new mold claims being

made by

building occupants including employees, homeowners, apartment

tenants, parents, and

school children. " Id. at 1.

This public hysteria also caused insurance claims relating to indoor

mold to

skyrocket from $200,000,000 in 2000 to $2,500,000,000 in 2002. See,

Dean

Calbreath, Increasingly Expensive Mold Infestation Claims Wreaking

Havoc, Copley

News Service, Feb. 18, 2003. This is " a key reason [that insurers]

are charging more

2

only a few lawsuits. See Sweeney & Sheri A. Mullikin,

The `Mold

Monster': Myth or Menace?, 1 Mealey's Litig. Rep.: Mold 1, 1 & nn.4-

5 (2001)

(citing 8 cases prior to 1996). In the late 1990's, however,

Americans lost their ability

to live non-litigiously with this ubiquitous organism. Although

there has been neither

a demonstrable increase in the quantity of mold, nor any significant

change in the

scientific evidence related to the health effects of mold, there has

been an explosion

of mold litigation.1 See, e.g., Dennis Hevesi, The Turmoil over Mold

in Buildings,

for insurance policies and halting coverage of homeowners who have

filed water

damage claims. " Id. Indeed, in thirty-five states insurers have

successfully lobbied

to exclude mold claims from insurance policies unless the damage

results from

another covered loss. Id.

3

N.Y. Times, Mar. 23, 2003, § 11, at 1 ( " about 10,000 mold-related

lawsuits have been

filed nationwide in the last three years " ).

Until now, courts have confined this epidemic of litigation to

traditional singleplaintiff

lawsuits. Attempts to certify single-building/multiple-occupant

classes have

been rejected by several courts. For example, a New York trial court

refused to certify

a class of " `[a]ll . . . residents . . . at Phipps Plazas, * * * who

have suffered personal

injuries and/or emotional distress as a result of exposure to

various chemicals, fungi,

mycotoxins, bacteria, construction debris and other toxic substances

due to the

defendants' negligence.' " v. Henry Phipps Plaza South, No.

116331/98 (N.Y.

Sup. Ct. Aug. 8, 2001) (Order denying class certification at 11)

(alteration and first

two omissions in original). The court held that " `[w]hile some

factual issues could

perhaps be resolved in a class action format, these issues are

thoroughly intertwined

with those that must be determined individually,' " such as " [t]he

specific conditions

which subjected individual Plaintiffs to mold exposure, " " [d]

efendants' repair and

remediation efforts, " and " causation and * * * comparative

negligence. " Id at 12.

The California Court of Appeals has reached the same conclusion. See

Wheeler

v. AvalonBay Communities, No. B 153535, 2002 Cal. App. Unpub. LEXIS

10906

2 The appellate court also upheld the trial court's conclusion

that " `no

amendment will cure the problems [with the complaint] and Plaintiffs

can never

realistically prove community of interest in law and facts

concerning liability and

causation, either as to the personal injury cause of actions or the

remaining cause of

actions [sic].' " Id. at *15.

4

(Cal. App. Nov. 22, 2002). Plaintiffs sought certification of a

class of " all persons

who were, or are, residents of the apartment units owned by AVALONBAY

COMMUNITIES, INC. * * * who have been exposed to toxic materials in

the

apartments including, without limitation, to bioaerosols emanating

from excessive

levels of mold, mildew and fungus and/or pesticides and/or other

chemicals. " Id. at

*3. The appellate court quoted the trial court's order denying class

certification with

approval, finding that " `each purported class member would have to

prove exposure

to a particular toxic substance, the timing of such exposure, and

the effect of such

exposure; Defendants would legitimately seek to present evidence of

exposure other

than at the apartment complex for each class member.' " 2 Id. at *8-9.

The reasoning

and conclusions of these decisions are clearly correct. Due to the

nature of such

claims and the characteristics of mold, individual issues must

predominate over any

potential common issues in a purported single-building/multiple-

occupant class action

in which plaintiffs seek damages for exposure to mold.

B. The Growth Of Mold.

Molds are naturally occurring members of the fungi kingdom. They

reproduce

and spread through the distribution of spores. An individual mold

spore can enter a

5

building in many ways, including through open doors or windows or by

becoming

attached to pets, clothes, or other personal items that enter the

building. See, e.g.,

Centers for Disease Control and Prevention, Questions and Answers on

Stachybotrys

Chartarum and Other Molds ( " CDC Q & A " ), Q.3, at

http://www.cdc.gov/nceh/

airpollution/mold/stachy.htm (last reviewed Nov. 30, 2002). In order

to begin

germinating, a mold spore needs only an appropriate nutrient base

(e.g., wood, paper,

cloth, or dust) and moisture. Id. Some species of mold require a

constant source of

standing water while others can thrive on just the humidity in the

air. See, e.g.,

J. Henning & A. Berman, Mold Contamination: Liability

and

Coverage Issues: Essential Information You Need to Know for

Successfully Handling

and Resolving Any Claim Involving Toxic Mold, 8 Hastings W.-NW. J.

Envtl. L. &

Pol'y 73, 80 (2001). Once they have a nutrient base and water, the

spores of some

species of mold can produce a mold colony, growing at an exponential

rate, within 24

to 48 hours. See, e.g., Envtl. & Occupational Disease Epidemiology,

N.Y. City Dept.

of Health & Mental Hygiene, Facts About Mold, at

http://www.ci.nyc.ny.us/html/

doh/html/epi/epimold.html (Feb. 2001).

Because molds spread so rapidly and require so little to

thrive, " [they] are

ubiquitous in nature and grow almost anywhere indoors and outdoors. "

State of the

Science on Molds and Human Health: Hearing Before the Subcomms. on

Oversight

and Investigations and Housing and Community Opportunity, House

Comm. on

6

Financial Services, 107th Cong. (July 18, 2002) (statement of

C. Redd, M.D.,

Chief, Air Pollution and Respiratory Health Branch National Center

for

Environmental Health, Centers for Disease Control and Prevention)

( " Redd

Statement " ), available at 2002 WL 1587891 (F.D.C.H.). " In the

natural environment

man is exposed to more than 100 species of airborne or dust-bound

microfungi.

Fungal spore counts frequently exceed pollen counts in the

atmosphere by 1000-fold. "

K. Bush and W. Yunginger, Standardization of Fungal

Allergens, 5 Clin.

Rev. Allergy 3 (1987). Not only are they ubiquitous in nature

generally, but " [m]olds

are very common in buildings and homes and will grow anywhere

indoors where there

is moisture. " CDC Q & A, supra, at Q.2.

" Exposure to molds * * * and their spores is unavoidable except when

the most

stringent of air filtration, isolation, and environmental sanitation

measures are

observed, eg, [sic] in organ transplant isolation units. " Am. Coll.

of Occupational &

Envtl. Med., Evidence Based Statements: Adverse Human Health Effects

Associated

with Molds in the Indoor Environment 1 (Oct. 27, 2002) ( " ACOEM " ),

available at

http://www.acoem.org/guidelines/pdf/Mold-10-27-02.pdf. Exposure to

mold can

occur either through physical contact with mold growth on a surface,

inhalation of

mold spores and airborne fragments, or ingestion of mold on food. In

addition, some

molds produce microbial volatile organic compounds ( " MVOCs " ), which

become

airborne and account for the unpleasant odors and tastes associated

with some mold.

3 See, e.g., ACOEM, supra, at 4-5; Robbins, supra, at 774; Redd

Statement,

supra ( " Linkages between indoor airborne exposures to molds and

other health effects

[beside infections and allergies] have not yet been scientifically

substantiated " );

Yehudith Assouline-Dayan et al., Studies of Sick Building Syndrome.

IV.

Mycotoxicosis, 39 J. of Asthma 191 (2002) ( " there is no evidence in

humans that mold

exposure leads to nonmucosal pathology " ); Texas Medical

Association's Council on

Scientific Affairs, Black Mold and Human Illness, CSA Report 1-I-02,

at 4 (Sept.

2002) ( " the proposition that molds in indoor environments may lead

to adverse health

effects through mechanisms other than infection and

allergic/immunologic reactions

is an untested impression " ), available at

http://www.texmed.org/has/CSA Black

Mold.doc; Payne et al., Latest Developments in Mold Exposure

Litigation, 17-

7

Id. at 4. Under certain conditions, some species of mold will also

produce secondary

metabolites known as mycotoxins. Id. Mycotoxins are large molecules

that do not

become airborne except when attached to a mold spore or particle

that is airborne. Id.

Possible health effects associated with mold exposure generally fall

into one of

three categories: allergic, infectious, or toxic. See, e.g., ACOEM,

supra, at 1. First,

a small but significant percentage of people suffer from mold

allergies. See, e.g., id.

at 2. Second, certain immunocompromised individuals may suffer

opportunistic mold

infections, usually in their lungs. See, e.g., id. at 3. Finally,

ingestion of certain

molds and mycotoxins growing on foods can produce a toxic effect.

See, e.g., id. at

4. The effect can be quite serious, ranging from headache and nausea

to death. See,

e.g., Coreen A. Robbins et al., Health Effects of Mycotoxins in

Indoor Air: A Critical

Review, 15 Applied Occupational & Envtl. Hygiene 773, 775 (2000).

Despite media

hype, there is no scientific proof that exposure to indoor mold

through physical

contact or inhalation produces a similar toxic health effect.3

Fall Nat. Resources & Env't. 132 (2002) (describing studies

conducted by the CDC,

California Department of Health Services, California Research

Bureau, Washington

State Department of Health, and two individual scientists finding no

toxic effect).

Some plaintiffs' experts have argued that certain animal studies

establish the

toxic effect of low-level chronic inhalation of indoor mold.

However, the scientific

community has found these studies lacking in scientific merit and

the causal

connection unproven. See, e.g., Yehudith Assouline-Dayan, supra

(criticizing studies

for various methodological errors and disanalogies to human

pathophysiology);

Robbins, supra (same).

8

Although mold does cause allergic reactions or infections in some

people, " t

is not known * * * what quantity of mold is acceptable in indoor

environments with

respect to health. " Redd Statement, supra. " ecause individuals

have different

sensitivities to molds, setting standards and guidelines for indoor

mold exposure

levels is difficult and may not be practical. " Id.; see also CDC

Q & A, supra, at Q.15

( " Standards for judging what is an acceptable, tolerable, or normal

quantity of mold

have not been established. " ).

C. The Class Action Is Not An Appropriate Vehicle For Bringing Mold-

Exposure Claims Because The Science Of Mold Does Not Permit

Class-wide Proof And Individual Issues Will Predominate.

Proof of a mold exposure claim will necessarily be dominated by

individualized

inquiries. Even if the plaintiffs were exposed to mold under

laboratory-like

conditions, the central questions of causation — whether and to what

extent a

standardized dose of mold affected each of them — would demand a

detailed inquiry

into each plaintiff's medical history, lifestyle, and environment.

And the individuality

of each claim is even greater in real life, where the quantity and

type of mold, the

9

duration and method of exposure, and the cause of the mold growth

itself are different

in each case. The following sections describe various

characteristics of mold and

indoor mold exposure that serve to make mold-exposure

claims " uniquely

individualized " and hence to preclude class-wide proof in any

singlebuilding/

multiple-occupant class action. See Liggett Group, Inc. v. Engle,

No. 3D00-

3400, slip op. at 11, 14 n.9, 16 (Fla. 3d DCA May 21, 2003)

(decertifying class of

smokers because, inter alia, " specific medical causation is

inherently individualized "

and " each class member had unique and different experiences that

will require the

litigation of substantially separate issues " ).

1. The amount and type of mold present in a building unit and the

causes of that mold growth vary from unit to unit.

Although mold is present everywhere, the extent and type of mold

growth

within a building can vary dramatically between apartments and even

from room to

room. The species of mold in a unit will depend on which spores

entered when a door

or window was left open or by becoming attached to clothing or pets.

See, e.g., CDC

Q & A, supra, at Q.3. The extent of mold growth will depend on

environmental factors

such as humidity, temperature, airflow, and nutrient base; whether

the mold has been

left alone or disturbed; and whether any chemicals such as cleaning

agents have been

applied to the mold. See, e.g., Harv. Health Letter, supra, at 1.

Thus, to determine the

type and extent of mold growth in a particular apartment requires a

first-hand

investigation.

4 Although amici have chosen to focus on the personal injury aspects

of

plaintiffs' claims, the necessity for individualized proof of

causation with regard to

mold in an apartment unit also undermines the ability to determine

property damages

claims on a class-wide basis. The uniqueness of each individual's

apartment home,

as well as other factors related to the effect of mold on physical

substances, weigh

against any attempt to certify a class limited to property damage

claims (in the event

plaintiffs were to seek to salvage their class in this way).

5 For example, " [a]flatoxin production by Aspergillus is dependent on

concentrations of O2, CO2, zinc, and copper, as well as physical

location. " D.M. Kuhn

& M.A. Ghannoum, Indoor Mold, Toxigenic Fungi, and Stachybotrys

Chartarum:

Infectious Disease Perspective, 16 Clinical Microbiology Reviews

144, 150 (2003).

This toxin is not normally produced by mold growing on building

materials. See, e.g.,

10

Furthermore, many of the factors that affect mold growth in

apartments depend

on choices made by the occupants: presence and type of carpeting;

type and

positioning of furniture; presence, type and cleanliness of pets;

temperature; use of air

conditioning or alternate ventilation systems; whether and how often

doors or

windows are left open; cleanliness habits of the occupants; and any

alteration of the

airflow in the unit (caused by, e.g., closed vents or general

clutter). See, e.g., id.

There is no single cause of mold growth in most apartments, but

rather a large set of

contributing factors. Thus, establishing the causes of mold growth

in an apartment

requires a detailed individualized investigation.4

2. The existence, amount, and type of mycotoxins produced are

idiosyncratic to each instance of mold growth.

Only a select group of molds produce mycotoxins. Robbins, supra, at

774.

Moreover, " [m]ycotoxin production for a given species is highly

dependent on growth

conditions, such as nutrient availability, temperature, and

humidity. " 5 Id.; see also

Guido Fischer & Wolfgang Dott, Relevance of Airborne Fungi and Their

Secondary

Metabolites for Environmental, Occupational and Indoor Hygiene, 179

Arch

Microbiol 75, 80 (2003).

11

ACOEM , supra, at 4 ( " The amount (if any) and type of mycotoxin

produced is

dependent on a complex and poorly understood interaction of factors

that probably

include nutrition, growth substrate, moisture, temperature, maturity

of the fungal

colony, and competition from other microorganisms. " ). " Additionally,

even under the

same conditions of growth, the profile and quantity of mycotoxins

produced by

toxigenic species can vary widely from one isolate to another. " Id.

at 4 (emphasis

added). " t does not necessarily follow from the mere presence of

a toxigenic

species that mycotoxins are also present. " Id.; see also Harv.

Health Letter, supra, at

2; EPA, Indoor Environments Division, Mold Remediation in Schools and

Commercial Buildings ( " EPA, Remediation " ) (2001), at 42, available at

http://www.epa.gov/iaq/molds/graphics/moldremediation.pdf (last

updated June 25,

2001), Kuhn, supra, at 147. Because there are no known principles of

mycotoxin

production (even for individual species), proof of the amount (or

even the presence)

of mycotoxins in a particular apartment requires a first-hand,

particularized,

investigation into the actual conditions in that unit.

3. The exposure of building occupants to mold and/or mycotoxins —

even when they are present — depends on the specific

environment and activities of the occupants.

The primary method of exposure to indoor molds and mycotoxins is

inhalation.

12

See, e.g., California Department of Health Services, Stachybotrys

Chartarum: A Mold

That May Be Found in Water-Damaged Homes ( " CDHS, Stachybotrys " ), at

http://www.dhs.ca.gov/ehib/ehib2/topics/stachygp00.doc (Nov. 2000).

The amount

of mold spores and fragments in the air depends on many

environmental factors,

including the growth substrate, ventilation and general airflow, and

physical

disturbance. See, e.g., Rafa» L. Górny, Fungal Fragments as Indoor

Air

Biocontaminants, 68 Applied & Envt'l. Microbiology 3522 (2002). Less

obviously,

differences in " carpeting type, pets, dust control measures, and

humidification " affect

airborne spore counts. Kuhn, supra, at 146 (citations omitted).

Thus, even if an

apartment has an elevated level of mold growth, it will not

necessarily have an

elevated level of airborne spores and fragments. See, e.g., Harriet

M. Ammann,

Washington State Department of Health, Is Indoor Mold Contamination

a Threat to

Health?, at http://www.doh.wa. gov/ehp/oehas/mold.html (last visited

May 21, 2003);

ACOEM, supra, at 6. Also important to apartment residents' actual

exposure levels

is the amount of time they spend in their apartment homes. Finally,

the timeline of

remediation efforts will affect the actual exposure levels of

occupants. For all of these

reasons, even if two apartments had identical mold growth, the

occupants would likely

have different exposure levels, and the actual levels would not be

ascertainable except

by studying the particular conditions of each case.

13

4. There is no common effect of mold exposure: some people have

no reaction to even elevated levels while others are hypersensitive

to small doses.

" Exposure to mold does not always result in a health problem. " Redd

Statement, supra; see also CDC Q & A, supra, at Q.10. Studies indicate

that

approximately 10% of the population have allergic antibodies to

common molds, and

that 5% are actually sensitized to mold and thus will suffer

allergic symptoms from

exposure. ACOEM, supra, at 2. Thus, 90-95% of people will not have

an allergic

response to mold in their apartments. Furthermore, the sensitivity

levels of the 5-10%

of people who are allergic to mold vary dramatically. Id. " What one

person can

tolerate with little or no effect, may produce symptoms in another

similarly exposed

individual. In fact, the reaction to both the amount and types of

mold varies from one

person to the next. " Minnesota Department of Health, Indoor Mold:

Hazard

Identification and Control, at http://www.health.state.

mn.us/divs/eh/indoorair/mold/

hazardid.html (last updated April 14, 2003); see also Redd

Statement, supra. Because

each person reacts (or doesn't react) to mold differently, "

tandards for judging what

is an acceptable, tolerable, or normal quantity of mold have not

been established. "

CDC Q & A, supra, at Q.15; see also Redd Statement, supra.

For those who do suffer from mold allergies, the symptoms caused by

exposure

" are most commonly experienced as allergic asthma or allergic

rhinitis (`hay fever'). "

ACOEM, supra, at 1. A person with mold-induced " hay fever " may have

only a mild

14

runny nose or may experience itching/watering eyes, general

congestion, atopic

dermatitis, or asthma symptoms. See, e.g., id. at 2. Although some

individuals'

symptoms get worse if they are exposed to a greater quantity of

mold, for others moldallergy

symptoms are not directly correlated with the amount of exposure.

See, e.g.,

Bush, supra, at 5-6; Fischer, supra, at 77. And " [allergic] reaction

is highly specific[;]

it is possible that even closely related mold species may cause

allergy, yet that allergy

may not be detected [upon exposure to another mold]. " Ammann, supra;

see also

Bush, supra, at 14-15. The severity of an individual's allergic

reaction to a given

species and quantity of mold (and whether there will be one at all)

cannot be known

without an individualized analysis of her allergic sensitivities.

5. Symptoms associated with mold allergies are non-specific and

may be caused by many environmental and health factors.

The allergic symptoms commonly caused by mold " are very nonspecific

and

may be related to exposure to other sources (such as dust mites,

animal dander, pollen

or other allergens) or to infectious agents such as viruses that

cause common colds or

flu. " CDHS, Stachybotrys, supra. In general, moreover, people who

exhibit allergic

responses to mold are also allergic to other environmental

allergens. ACOEM, supra,

at 2. The actual cause of an individual's allergic symptoms,

therefore, cannot be

attributed to mold in her apartment (or to mold at all) without a

medical analysis of

her allergic sensitivities and other health conditions.

15

6. Allergic reactions to mold may be exacerbated by a person's

behavior, work, or other factors.

Sensitivity to mold can be heightened, and symptoms of mold

allergies can be

exacerbated, by many factors, including other allergies, exposure to

certain chemicals

or biological agents, and various health-related lifestyle choices.

For example,

" marijuana smoking may lead to development of fungal

hypersensitivity reactions, "

and smoking in general will make allergic symptoms worse (especially

respiratory

symptoms). Bush, supra, at 6. A person's work may also cause or

exacerbate allergic

symptoms. See, e.g., Fischer, supra, at 77 ( " professions in the

fields of agriculture,

forestry * * * food production, * * * [and] [w]aste collectors are

at increased risk " ).

Finally, other general health conditions, including " mental stress, "

are correlated with

higher levels of allergic symptoms. See, e.g., Assouline-Dayan,

supra, at 196. Even

if an individual is experiencing an allergic reaction to mold in her

apartment, an

individualized analysis may reveal that other factors are

contributing to her symptoms

or that she is responsible for exacerbating her condition.

7. Individuals who suffer from asthma may experience varying

responses to mold in the air, but asthmatic symptoms can be

caused or exacerbated by many factors.

" Molds can trigger asthma attacks in persons who are allergic

(sensitized) to

molds. The irritants produced by molds may also worsen asthma in non-

allergic (nonsensitized)

people. " EPA, Remediation, at 40. However, most individuals will not

6 Molds do not cause asthma to develop. They only exacerbate

symptoms in

people who already suffer from asthma. See, e.g., Redd Statement,

supra.

16

have an asthmatic response to inhalant mold because they are not

asthmatic.6 See,

e.g., 1 American Academy of Allergy, Asthma, and Immunology, The

Allergy Report

( " AAAAI, Allergy " ) at 2 (2001), available at

http://www.theallergyreport.org/

reportindex.html (approximately 15 million Americans are asthmatic).

Among

asthmatic individuals, " [t]he types and severity of symptoms depend,

in part, on the

types of mold present, the extent of an individual's exposure, the

ages of the

individuals, and their existing sensitivities or allergies. " EPA,

Remediation, supra,

at 40.

Much like general allergic symptoms, asthma may be caused or

exacerbated by

many environmental factors. Animal dander, dust mites, pollens,

tobacco smoke, air

pollution, perfumes, and changes in humidity can all be " triggers "

for asthma. See,

e.g., 2 AAAAI, Allergy, supra, at 51-53. Other individuals may

suffer asthma

symptoms in response to aspirin, sulfites, or beta-blockers. See,

e.g., id. And " the

most common cause of asthma symptoms " is " viral respiratory

infection. " Id. at 53.

The causes of an individual's asthma symptoms (and any exacerbating

effects) cannot

be determined without an individual medical evaluation.

17

8. Individual testing is necessary to identify the source of a mold

infection.

Certain species of mold (e.g., Aspergillus fumigatus) may infect the

lungs or

other opportunistic sites within individuals who have weakened

immune systems.

See, e.g., Fischer, supra, at 76; EPA, Remediation, supra, at 41.

Because a mold

infection involves the growth of a particular species of mold in or

on the human body,

potential sources of the infection can be either confirmed or ruled

out through

individual testing. See ACOEM, supra, at 3. Although it may be

impossible to

determine the actual source of the infection, it is possible to rule

out certain potential

sources, such as an individual's apartment, if the relevant species

is not found there.

Therefore, individual testing is required to identify the cause of a

mold infection.

9. Because there is no proven link between indoor mold exposure

and health effects other than exacerbation of existing allergies

and asthma, to the extent any member of the class seeks to recover

for any other health effects, there is no conceivable way in which

causation could be established on a class-wide basis.

Despite widespread media hype over " toxic mold, " scientific study

has not

established any connection between exposure to indoor mold and any

effect other than

allergies, asthma, or infections. See, e.g., authorities cited at

note 3, supra. Amici

believe that a toxic effect from inhalation of indoor mold cannot be

proved — either

in a class action or an individual suit — given the current state of

the science.

However, any attempt to do so in this case cannot possibly be

accomplished on a

class-wide basis. Among many potential subjects of individualized

proof, there would

18

have to be evidence that the individual was susceptible to the

mycotoxin in question,

proof that the mycotoxin was actually present in the apartment and

that the individual

was exposed to a dose (whether low-level chronic or a single large

dose) exceeding

her tolerance level, proof that this particular dose of inhaled

mycotoxins can cause

certain symptoms, proof that the individual suffered those symptoms,

and proof that

the individual's symptoms do not have another scientifically

recognized cause.

* * * * *

In sum, these and other individual factual issues would inevitably

swamp any

common ones in a single-building/multiple-occupant mold-exposure

case, making

class status improper under Florida Rule of Civil Procedure 1.220(

(3). See, e.g.,

Braun v. , 827 So. 2d 261, 267 (Fla. 5th DCA 2002) ( " Where

both liability

and damages depend on individual factual determinations, resolution

of these claims

can only be decided on an individual basis which is inconsistent

with the commonality

requirement for class actions. " ).

II. THIS CASE CANNOT BE TRIED AS A CLASS ACTION WITHOUT

VIOLATING THE DEFENDANTS' DUE PROCESS RIGHTS.

If a single tenant living in defendants' apartment building were to

sue for

injuries allegedly caused by mold in her apartment, she would have

to prove by

competent admissible evidence, among other things, that: (i) there

was mold growth

in her apartment, (ii) the mold growth was caused by the defendants'

negligence, (iii)

she was exposed to a certain type and amount of mold, (iv) she was

biologically

19

susceptible to that mold exposure, (v) she actually suffered from

certain relevant

symptoms, and (vi) her symptoms were caused by the mold in her

apartment rather

than other environmental or health-related factors. She would also

have to prove that

she suffered damages, and in what amount.

For their part, defendants would have a right to present all of the

evidence

available to them under Florida law. See, e.g., Lindsey v. Normet,

405 U.S. 56, 66

(1972) ( " [d]ue process requires that there be an opportunity to

present every available

defense " ) (quotation and citation omitted). Specifically, they would

have the right to

present rebuttal evidence on each element of the plaintiff's case,

including evidence

that: (a) the mold growth was caused or made worse by the

plaintiff's behavior, (

the specific type and/or quantity of mold in her apartment has not

been proven

scientifically to cause the symptoms she alleges, © she is not

biologically susceptible

to the mold in her apartment (e.g., she is not allergic to mold or

to that species of

mold), (d) although there is mold in her apartment, for various

reasons she did not

receive a significant dose (e.g., she was rarely present in the

apartment), (e) any mold

in her apartment did not produce mycotoxins (if she is attempting to

establish a toxic

effect), (f) her symptoms were caused by another source (e.g.,

exposure to another

allergen or a pre-existing health condition), and/or (g) her

symptoms were exacerbated

by another environmental condition or her own behavior (e.g.,

smoking).

In the class action setting, too, no claimant's right to collect

damages for mold

7 The trial court avoided these issues by failing to explain how it

intended to

manage this case as a class action. Under federal case law, which

Florida courts deem

" persuasive authority " (Engle, slip op. at 11 n.5), that omission

alone justifies

reversal. See Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th

Cir. 1996).

20

exposure could be determined without individualized proof on these

issues. See

Engle, slip op. at 31 ( " Specific medical causation and legal

causation, along with other

elements of liability, must be established on an individualized

basis. " ); id. at 17

( " affirmative defenses and damages must be litigated individually " ).

Even if the

claims of hundreds of tenants were lumped together in a single

action, each plaintiff's

burden to make these separate showings, the defendants' right to

investigate and

challenge each plaintiff's evidence and to offer individualized

defenses, and the trial

court's duty to make individualized case-by-case findings on these

issues would be

undiminished. Id. at 60-61 n.48 (class action device may not be used

to " alter the

substantive rights of the parties in [the plaintiffs'] favor " ).

Thus, if this case is

allowed to proceed as a class action, the trial will either be

dominated by individual

issues for each of hundreds of class members, or it will violate the

due process clause

by relieving plaintiffs of their obligation to prove each element of

their case and

depriving defendants of their right to present evidence in their

defense.7 Because

neither alternative is permissible, this class should be decertified.

CONCLUSION

The Court should reverse with instructions to decertify the class.

Respectfully submitted this 27th day of May, 2003.

__________________________________

Robin S. Conrad Kantor, Florida Bar No. 0111901

NATIONAL CHAMBER Evan M. Tager

LITIGATION CENTER, INC. Carl J. Summers

1615 H Street, N.W. MAYER, BROWN, ROWE & MAW

Washington, D.C. 20062 1909 K Street, N.W.

(202) 463-5337 Washington, D.C. 20006

(202) 263-3000

Counsel for Amicus Curiae the Attorneys for Amici Curiae the Chamber

of

Chamber of Commerce Commerce of the United States, the National

of the United States Multi Housing Council, the National

Apartment Association, the National Leased

Housing Association, the Building Owners

and Managers Association International, the

National Association of Industrial and

Office Properties, the Florida Apartment

Association, the National Association of

Real Estate Investment Trusts, Inc., and the

Real Estate Roundtable

CERTIFICATE OF SERVICE

It is hereby certified that copies of the foregoing Brief of Amici

Curiae the

Chamber of Commerce of the United States, the National Multi Housing

Council, the

National Apartment Association, the National Leased Housing

Association, the

Building Owners and Managers Association International, the National

Association

of Industrial and Office Properties, the Florida Apartment

Association, the National

Association of Real Estate Investment Trusts, Inc., and the Real

Estate Roundtable in

Support of Defendants/Appellants were sent, by overnight delivery,

to:

Joy Spillis Lundeen, Esq.,

STEARNS WEAVER MILLER WEISSLER

ALHADEFF & SITTERSON, P.A.

Museum Tower, Suite 2200

150 West Flagler Street

Miami, Florida 33130

Counsel for Plaintiffs/Appellees

Rodolfo Sorondo, Jr.

HOLLAND & KNIGHT LLP

701 Brickell Avenue, Suite 3000

Miami, Florida 33131

Counsel for Defendants/Appellants

on this 27th day of May, 2003.

__________________________________

Kantor, Florida Bar No. 0111901

Attorney for Amici Curiae

CERTIFICATE OF COMPLIANCE

It is hereby certified that the foregoing Brief of Amici Curiae the

Chamber of

Commerce of the United States, the National Multi Housing Council,

the National

Apartment Association, the National Leased Housing Association, the

Building

Owners and Managers Association International, the National

Association of

Industrial and Office Properties, the Florida Apartment Association,

the National

Association of Real Estate Investment Trusts, Inc., and the Real

Estate Roundtable in

Support of Defendants/Appellants is in compliance with the font

requirements of

Florida Rules of Civil Procedure 9.210(2).

__________________________________

Kantor, Florida Bar No. 0111901

Attorney for Amici Curiae

[Guest guest]

Are they objecting to simply a group of tenants IN THE SAME BUILDING

suing their landlord?

Thats the only way a lot of renters can get a lawyer and they know it.

People lose years of their lives and their health and they end up

getting TINY settlements but at least if there is a group they could

get a lawyer.

Looking at their objections, they look like the same things these

defendants usually try to argue and

they aren't good arguments. They aren't accurate scientifically either.

I'm amazed that they are still using the troubled ACOEM's stuff too.

How old is this? Does anybody know?

Oh, okay, I just saw the date, its from 2003...

[Guest guest]

The " government " , courts, judges, attornys, people are such in

denial, still! This article sites some of the same articles that we

all know are of conflict of interests and have no merit in my world.

The condratictions within the " government " are incredible; incredibly

assinine!

--- In , " tigerpaw2c " <tigerpaw2c@...>

wrote:

>

> IN THE DISTRICT COURT OF APPEAL

> OF FLORIDA, THIRD DISTRICT

> Case No. 3D03-403

> ARCHSTONE-SMITH OPERATING TRUST, et al.,

> Defendants/Appellants.

> vs.

> RACHEL J. HENRIQUES, et al.,

> Plaintiffs/Appellees,

>

>

http://www.uschamber.com/NR/rdonlyres/en63nczwnki5wqpkbav52j6syhtadxo

>

h2za2uutswadk7vknyupynipqg4q2xcj2psoif2w6l3h7mp/ArchstoneOperati

> ngTrustetalvHenriquesetal.pdf

>

> __________________________________________________________________

> BRIEF OF AMICI CURIAE THE CHAMBER OF COMMERCE OF THE

> UNITED STATES, THE NATIONAL MULTI HOUSING COUNCIL, THE

> NATIONAL APARTMENT ASSOCIATION, THE NATIONAL LEASED

> HOUSING ASSOCIATION, THE BUILDING OWNERS AND MANAGERS

> ASSOCIATION INTERNATIONAL, THE NATIONAL ASSOCIATION OF

> INDUSTRIAL AND OFFICE PROPERTIES, THE FLORIDA

> APARTMENT ASSOCIATION, THE NATIONAL ASSOCIATION OF

> REAL ESTATE INVESTMENT TRUSTS, INC., AND THE REAL ESTATE

> ROUNDTABLE IN SUPPORT OF DEFENDANTS/APPELLANTS

> __________________________________________________________________

> Filed by leave of Court

> ON APPEAL FROM THE ELEVENTH JUDICIAL CIRCUIT

> IN AND FOR MIAMI-DADE COUNTY, FLORIDA

> Robin S. Conrad Kantor, Florida Bar No. 0111901

> NATIONAL CHAMBER Evan M. Tager

> LITIGATION CENTER, INC. Carl J. Summers

> 1615 H Street, N.W. MAYER, BROWN, ROWE & MAW

> Washington, D.C. 20062 1909 K Street, N.W.

> (202) 463-5337 Washington, D.C. 20006

> (202) 263-3000

> i

> TABLE OF CONTENTS

> Page

> TABLE OF

>

AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . . . . . . . iii

> IDENTITY AND INTEREST OF

> AMICI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

>

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . . . . . . . . . . . . . . . . . . . 1

> I. CASES INVOLVING ALLEGED HARM FROM INDOOR MOLD

> ARE PARTICULARLY UNSUITED FOR CLASS ACTION

>

TREATMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . . . . . . . . . . . . . 1

> A. The Growth Of Mold

>

Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> 1

> B. The Growth Of

>

Mold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . 4

> C. The Class Action Is Not An Appropriate Vehicle For Bringing

> Mold-Exposure Claims Because The Science Of Mold Does

> Not Permit Class-wide Proof And Individual Issues Will

>

Predominate . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . . . . . . . . . . . 8

> 1. The amount and type of mold present in a building unit

> and the causes of that mold growth vary from unit to unit . . . . 9

> 2. The existence, amount, and type of mycotoxins produced

> are idiosyncratic to each instance of mold growth . . . . . . . . .

> 10

> 3. The exposure of building occupants to mold and/or

> mycotoxins — even when they are present — depends on

> the specific environment and activities of the occupants . . . . 11

> 4. There is no common effect of mold exposure: some

> people have no reaction to even elevated levels while

> others are hypersensitive to small

> doses . . . . . . . . . . . . . . . . . 12

> 5. Symptoms associated with mold allergies are nonspecific

> and may be caused by many environmental and

> health

>

factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . . 14

> TABLE OF CONTENTS

> (continued)

> Page

> ii

> 6. Allergic reactions to mold may be exacerbated by a

> person's behavior, work, or other

> factors . . . . . . . . . . . . . . . . 15

> 7. Individuals who suffer from asthma may experience

> varying responses to mold in the air, but asthmatic

> symptoms can be caused or exacerbated by many factors . . . 15

> 8. Individual testing is necessary to identify the source of a

> mold

>

infection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . . 17

> 9. Because there is no proven link between indoor mold

> exposure and health effects other than exacerbation of

> existing allergies and asthma, to the extent any member

> of the class seeks to recover for any other health effects,

> there is no conceivable way in which causation could be

> established on a class-wide

> basis . . . . . . . . . . . . . . . . . . . . . . 17

> II. THIS CASE CANNOT BE TRIED AS A CLASS ACTION

> WITHOUT VIOLATING THE DEFENDANTS' DUE PROCESS

>

RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . . . . . . . . . . . . . . . . 18

>

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . . . . . . . . . . . . . . . . . 20

> iii

> TABLE OF AUTHORITIES

> Page(s)

> CASES

> Braun v. , 827 So. 2d 261 (Fla. 5th DCA

> 2002) . . . . . . . . . . . . . . . . . . 18

> Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir.

> 1996) . . . . . . . . . . . . . 20

> v. Henry Phipps Plaza South, No. 116331/98

> (N.Y. Sup. Ct. Aug. 8,

>

2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . 3

> Liggett Group, Inc. v. Engle, No. 3D00-3400

> (Fla. 3d DCA May 21,

>

2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . 9, 20

> Lindsey v. Normet, 405 U.S. 56

>

(1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . 19

> Wheeler v. AvalonBay Communities, No. B 153535,

> 2002 Cal. App. Unpub. LEXIS 10906

> (Cal. App. Nov. 22,

>

2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . 3, 4

> STATUTES

> Fla. R. Civ. P. 1.220(

>

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . . . 1, 18

> MISCELLANEOUS

> 1 American Academy of Allergy, Asthma, and Immunology,

> The Allergy Report (2001), available at

> http://www.theallergyreport.org/

> reportindex.html . . . . . . . . . . . . . . . . . . . 16

> Am. Coll. of Occupational & Envtl. Med., Evidence Based

> Statements: Adverse Human Health Effects Associated

> with Molds in the Indoor Environment 1 (Oct. 27, 2002),

> available at http://www.acoem.org/guidelines/pdf/

> Mold-10-27-

>

02.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . . . passim

> TABLE OF AUTHORITIES

> (continued)

> Page(s)

> iv

> Harriet M. Ammann, Washington State Department of Health,

> Is Indoor Mold Contamination a Threat to Health?,

> at http://www.doh.wa. gov/ehp/oehas/mold.html

> (last visited May 21,

>

2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . 12, 14

> K. Bush and W. Yunginger, Standardization of

> Fungal Allergens, 5 Clin. Rev. Allergy 3

> (1987) . . . . . . . . . . . . . . . 6, 14, 15

> Dean Calbreath, Increasingly Expensive Mold Infestation

> Claims Wreaking Havoc, Copley News Service, Feb. 18,

> 2003 . . . . . . . . 2, 3

> California Department of Health Services, Stachybotrys Chartarum:

> A Mold That May Be Found in Water-Damaged Homes,

> at http://www.dhs.ca.gov/ehib/ehib2/topics/

> stachygp00.doc (Nov.

>

2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . 12, 14

> Centers for Disease Control and Prevention, Questions and Answers

> on Stachybotrys Chartarum and Other Molds,

> at http://www.cdc.gov/nceh/airpollution/mold/stachy.htm

> (last reviewed Nov. 30,

> 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> passim

> Conlin, Is Your Office Killing You? Sick Buildings

> Are Seething with Molds, Monoxide — and Worse,

> Business Week, June 5,

>

2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . 2

> EPA, Indoor Environments Division, Mold Remediation in

> Schools and Commercial Buildings (2001),

> available at http://www.epa.gov/iaq/molds/graphics/

> moldremediation.pdf (last updated June 25,

> 2001) . . . . . . . . . . . . . . . passim

> Envtl. & Occupational Disease Epidemiology, N.Y. City Dept. of

> Health & Mental Hygiene, Facts About Mold, at

> http://www.ci.nyc.ny.us/html/ doh/html/epi/epimold.html

> (Feb.

>

2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . . . . . . . . . . . . . 5

> TABLE OF AUTHORITIES

> (continued)

> Page(s)

> v

> Guido Fischer & Wolfgang Dott, Relevance of Airborne

> Fungi and Their Secondary Metabolites for

> Environmental, Occupational and Indoor Hygiene, 179

> Arch Microbiol 75

> (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11,

> 14, 15, 17

> 48 Hours: This Mold House (CBS television broadcast, Mar. 2,

> 2000) . . . . . . . . . 2

> Rafa» L. Górny, Fungal Fragments as Indoor Air Biocontaminants,

> 68 Applied & Envt'l. Microbiology 3522

> (2002) . . . . . . . . . . . . . . . . . . . . 12

> J. Henning & A. Berman, Mold Contamination:

> Liability and Coverage Issues: Essential Information

> You Need to Know for Successfully Handling and Resolving

> Any Claim Involving Toxic Mold, 8 Hastings W.-NW. J.

> Envtl. L. & Pol'y 73

>

(2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . 5

> Dennis Hevesi, The Turmoil over Mold in Buildings, N.Y. Times,

> Mar. 23, 2003, § 11, at

>

1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . 2

> D.M. Kuhn & M.A. Ghannoum, Indoor Mold, Toxigenic Fungi,

> and Stachybotrys Chartarum: Infectious Disease Perspective,

> 16 Clinical Microbiology Reviews 144

> (2003) . . . . . . . . . . . . . . . . . . passim

> Minnesota Department of Health, Indoor Mold: Hazard Identification

> and Control, at http://www.health.state.mn.us/divs/eh/

> indoorair/mold/ hazardid.html (last updated April 14,

> 2003) . . . . . . . . 13, 14

> Sweeney & Sheri A. Mullikin, The `Mold Monster':

> Myth or Menace?, 1 Mealey's Litig. Rep.: Mold 1

> (2001) . . . . . . . . . . . . . 2

> Payne et al., Latest Developments in Mold Exposure

> Litigation, 17-Fall Nat. Resources & Env't. 132

> (2002) . . . . . . . . . . . . . . . . 7

> TABLE OF AUTHORITIES

> (continued)

> Page(s)

> vi

> Coreen A. Robbins et al., Health Effects of Mycotoxins in Indoor

> Air: A Critical Review, 15 Applied Occupational &

> Envtl. Hygiene 773

>

(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . 7, 8, 10

> State of the Science on Molds and Human Health: Hearing

> Before the Subcomms. on Oversight and Investigations

> and Housing and Community Opportunity, House Comm.

> on Financial Services, 107th Cong. (July 18, 2002),

> available at 2002 WL 1587891

> (F.D.C.H.) . . . . . . . . . . . . . . . . . . . . passim

> Texas Medical Association's Council on Scientific Affairs,

> Black Mold and Human Illness, CSA Report 1-I-02, at 4

> (Sept. 2002), available at http://www.texmed.org/has/

> CSA Black

>

Mold.doc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . . . . . . . 7

> The Truth About Mold, 28 Harv. Health Letter 3 (Harv. Med. Sch.),

> Jan. 2003, at

>

2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . . . 2, 9, 10, 11

> United States Centers for Disease Control and Prevention,

> Update: Pulmonary Hemorrhage/Hemosiderosis Among

> Infants – Cleveland, Ohio, 1993-1996, 49 Morbidity &

> Mortality Wkly. Rep. 9

>

(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

> . . . . 2

> Yehudith Assouline-Dayan et al., Studies of Sick Building

> Syndrome. IV. Mycotoxicosis, 39 J. of Asthma 191

> (2002) . . . . . . . . 7, 8, 15

> IDENTITY AND INTEREST OF AMICI

> Amici submit this brief pursuant to the Court's order of March 11,

> 2003. Amici

> are national and state trade organizations representing, among

> others, developers,

> financiers, architects, builders, owners, and managers of

> residential, commercial, and

> industrial buildings. Amici believe that the certification decision

> at issue here not

> only violates the rights of the defendants in this case, but also

> threatens those of their

> members who have various interests in multi-occupant buildings

> located in Florida.

> The trial court's order broke legal ground by certifying the first

> ever singlebuilding/

> multiple-occupant mold-exposure class action in the country. Unless

> the

> class certification is reversed, other Florida courts may do the

> same, and moldexposure

> class action filings will multiply. Accordingly, the amici have a

> strong

> interest in explaining to this Court why a single-building/multiple-

> occupant moldexposure

> case cannot be litigated as class action within the boundaries of

> fairness and

> due process established by Florida Rule of Civil Procedure 1.220(

> (3) and the

> Fourteenth Amendment.

> ARGUMENT

> I. CASES INVOLVING ALLEGED HARM FROM INDOOR MOLD ARE

> PARTICULARLY UNSUITED FOR CLASS ACTION TREATMENT.

> A. The Growth Of Mold Litigation.

> People have lived with mold as long as they have lived indoors.

> Until the mid-

> 1990's, the close and constant association between people and

indoor

> mold spawned

> 1 This explosion was caused by a combination of misleading medical

> reports,

> media hype, and the possibility of large verdicts in what promised

> to be an enormous

> number of mold cases. " The current concern about toxic mold really

> started several

> years ago after federal health officials blamed mold in dilapidated

> homes in Cleveland

> for a cluster of 10 cases of pulmonary hemorrhage (bleeding in the

> lungs). But the

> report was later retracted when outside reviewers found critical

> mistakes in the

> investigation. " The Truth About Mold, 28 Harv. Health Letter 3

> (Harv. Med. Sch.),

> Jan. 2003, at 2; see also United States Centers for Disease Control

> and Prevention,

> Update: Pulmonary Hemorrhage/Hemosiderosis Among Infants -

> Cleveland, Ohio,

> 1993-1996, 49 Morbidity & Mortality Wkly. Rep. 9, 180 (2000)

> (discussing the

> retraction of the original report). Although the Cleveland report

> was retracted, the

> popular media became infatuated with the possibility that mold, an

> organism we all

> live with, might be dangerous or even deadly. See, e.g., 48 Hours:

> This Mold House

> (CBS television broadcast, Mar. 2, 2000); Conlin, Is Your

> Office Killing

> You? Sick Buildings Are Seething with Molds, Monoxide — and Worse,

> Business

> Week, June 5, 2000, at 114. This media attention — along with a few

> large highprofile

> verdicts — sparked an epidemic of mold-litigation that has swept

> across the

> country. See, e.g., Sweeney, supra, at 1-2. Today, " it is almost

> impossible to follow

> local or national news without learning about new mold claims being

> made by

> building occupants including employees, homeowners, apartment

> tenants, parents, and

> school children. " Id. at 1.

> This public hysteria also caused insurance claims relating to

indoor

> mold to

> skyrocket from $200,000,000 in 2000 to $2,500,000,000 in 2002. See,

> Dean

> Calbreath, Increasingly Expensive Mold Infestation Claims Wreaking

> Havoc, Copley

> News Service, Feb. 18, 2003. This is " a key reason [that insurers]

> are charging more

> 2

> only a few lawsuits. See Sweeney & Sheri A. Mullikin,

> The `Mold

> Monster': Myth or Menace?, 1 Mealey's Litig. Rep.: Mold 1, 1 & nn.4-

> 5 (2001)

> (citing 8 cases prior to 1996). In the late 1990's, however,

> Americans lost their ability

> to live non-litigiously with this ubiquitous organism. Although

> there has been neither

> a demonstrable increase in the quantity of mold, nor any

significant

> change in the

> scientific evidence related to the health effects of mold, there

has

> been an explosion

> of mold litigation.1 See, e.g., Dennis Hevesi, The Turmoil over

Mold

> in Buildings,

> for insurance policies and halting coverage of homeowners who have

> filed water

> damage claims. " Id. Indeed, in thirty-five states insurers have

> successfully lobbied

> to exclude mold claims from insurance policies unless the damage

> results from

> another covered loss. Id.

> 3

> N.Y. Times, Mar. 23, 2003, § 11, at 1 ( " about 10,000 mold-related

> lawsuits have been

> filed nationwide in the last three years " ).

> Until now, courts have confined this epidemic of litigation to

> traditional singleplaintiff

> lawsuits. Attempts to certify single-building/multiple-occupant

> classes have

> been rejected by several courts. For example, a New York trial

court

> refused to certify

> a class of " `[a]ll . . . residents . . . at Phipps Plazas, * * *

who

> have suffered personal

> injuries and/or emotional distress as a result of exposure to

> various chemicals, fungi,

> mycotoxins, bacteria, construction debris and other toxic

substances

> due to the

> defendants' negligence.' " v. Henry Phipps Plaza South, No.

> 116331/98 (N.Y.

> Sup. Ct. Aug. 8, 2001) (Order denying class certification at 11)

> (alteration and first

> two omissions in original). The court held that " `[w]hile some

> factual issues could

> perhaps be resolved in a class action format, these issues are

> thoroughly intertwined

> with those that must be determined individually,' " such as " [t]he

> specific conditions

> which subjected individual Plaintiffs to mold exposure, " " [d]

> efendants' repair and

> remediation efforts, " and " causation and * * * comparative

> negligence. " Id at 12.

> The California Court of Appeals has reached the same conclusion.

See

> Wheeler

> v. AvalonBay Communities, No. B 153535, 2002 Cal. App. Unpub. LEXIS

> 10906

> 2 The appellate court also upheld the trial court's conclusion

> that " `no

> amendment will cure the problems [with the complaint] and

Plaintiffs

> can never

> realistically prove community of interest in law and facts

> concerning liability and

> causation, either as to the personal injury cause of actions or the

> remaining cause of

> actions [sic].' " Id. at *15.

> 4

> (Cal. App. Nov. 22, 2002). Plaintiffs sought certification of a

> class of " all persons

> who were, or are, residents of the apartment units owned by

AVALONBAY

> COMMUNITIES, INC. * * * who have been exposed to toxic materials in

> the

> apartments including, without limitation, to bioaerosols emanating

> from excessive

> levels of mold, mildew and fungus and/or pesticides and/or other

> chemicals. " Id. at

> *3. The appellate court quoted the trial court's order denying

class

> certification with

> approval, finding that " `each purported class member would have to

> prove exposure

> to a particular toxic substance, the timing of such exposure, and

> the effect of such

> exposure; Defendants would legitimately seek to present evidence of

> exposure other

> than at the apartment complex for each class member.' " 2 Id. at *8-

9.

> The reasoning

> and conclusions of these decisions are clearly correct. Due to the

> nature of such

> claims and the characteristics of mold, individual issues must

> predominate over any

> potential common issues in a purported single-building/multiple-

> occupant class action

> in which plaintiffs seek damages for exposure to mold.

> B. The Growth Of Mold.

> Molds are naturally occurring members of the fungi kingdom. They

> reproduce

> and spread through the distribution of spores. An individual mold

> spore can enter a

> 5

> building in many ways, including through open doors or windows or

by

> becoming

> attached to pets, clothes, or other personal items that enter the

> building. See, e.g.,

> Centers for Disease Control and Prevention, Questions and Answers

on

> Stachybotrys

> Chartarum and Other Molds ( " CDC Q & A " ), Q.3, at

> http://www.cdc.gov/nceh/

> airpollution/mold/stachy.htm (last reviewed Nov. 30, 2002). In

order

> to begin

> germinating, a mold spore needs only an appropriate nutrient base

> (e.g., wood, paper,

> cloth, or dust) and moisture. Id. Some species of mold require a

> constant source of

> standing water while others can thrive on just the humidity in the

> air. See, e.g.,

> J. Henning & A. Berman, Mold Contamination:

Liability

> and

> Coverage Issues: Essential Information You Need to Know for

> Successfully Handling

> and Resolving Any Claim Involving Toxic Mold, 8 Hastings W.-NW. J.

> Envtl. L. &

> Pol'y 73, 80 (2001). Once they have a nutrient base and water, the

> spores of some

> species of mold can produce a mold colony, growing at an

exponential

> rate, within 24

> to 48 hours. See, e.g., Envtl. & Occupational Disease Epidemiology,

> N.Y. City Dept.

> of Health & Mental Hygiene, Facts About Mold, at

> http://www.ci.nyc.ny.us/html/

> doh/html/epi/epimold.html (Feb. 2001).

> Because molds spread so rapidly and require so little to

> thrive, " [they] are

> ubiquitous in nature and grow almost anywhere indoors and

outdoors. "

> State of the

> Science on Molds and Human Health: Hearing Before the Subcomms. on

> Oversight

> and Investigations and Housing and Community Opportunity, House

> Comm. on

> 6

> Financial Services, 107th Cong. (July 18, 2002) (statement of

> C. Redd, M.D.,

> Chief, Air Pollution and Respiratory Health Branch National Center

> for

> Environmental Health, Centers for Disease Control and Prevention)

> ( " Redd

> Statement " ), available at 2002 WL 1587891 (F.D.C.H.). " In the

> natural environment

> man is exposed to more than 100 species of airborne or dust-bound

> microfungi.

> Fungal spore counts frequently exceed pollen counts in the

> atmosphere by 1000-fold. "

> K. Bush and W. Yunginger, Standardization of Fungal

> Allergens, 5 Clin.

> Rev. Allergy 3 (1987). Not only are they ubiquitous in nature

> generally, but " [m]olds

> are very common in buildings and homes and will grow anywhere

> indoors where there

> is moisture. " CDC Q & A, supra, at Q.2.

> " Exposure to molds * * * and their spores is unavoidable except

when

> the most

> stringent of air filtration, isolation, and environmental

sanitation

> measures are

> observed, eg, [sic] in organ transplant isolation units. " Am. Coll.

> of Occupational &

> Envtl. Med., Evidence Based Statements: Adverse Human Health

Effects

> Associated

> with Molds in the Indoor Environment 1 (Oct. 27, 2002) ( " ACOEM " ),

> available at

> http://www.acoem.org/guidelines/pdf/Mold-10-27-02.pdf. Exposure to

> mold can

> occur either through physical contact with mold growth on a

surface,

> inhalation of

> mold spores and airborne fragments, or ingestion of mold on food.

In

> addition, some

> molds produce microbial volatile organic compounds ( " MVOCs " ), which

> become

> airborne and account for the unpleasant odors and tastes associated

> with some mold.

> 3 See, e.g., ACOEM, supra, at 4-5; Robbins, supra, at 774; Redd

> Statement,

> supra ( " Linkages between indoor airborne exposures to molds and

> other health effects

> [beside infections and allergies] have not yet been scientifically

> substantiated " );

> Yehudith Assouline-Dayan et al., Studies of Sick Building Syndrome.

> IV.

> Mycotoxicosis, 39 J. of Asthma 191 (2002) ( " there is no evidence in

> humans that mold

> exposure leads to nonmucosal pathology " ); Texas Medical

> Association's Council on

> Scientific Affairs, Black Mold and Human Illness, CSA Report 1-I-

02,

> at 4 (Sept.

> 2002) ( " the proposition that molds in indoor environments may lead

> to adverse health

> effects through mechanisms other than infection and

> allergic/immunologic reactions

> is an untested impression " ), available at

> http://www.texmed.org/has/CSA Black

> Mold.doc; Payne et al., Latest Developments in Mold Exposure

> Litigation, 17-

> 7

> Id. at 4. Under certain conditions, some species of mold will also

> produce secondary

> metabolites known as mycotoxins. Id. Mycotoxins are large molecules

> that do not

> become airborne except when attached to a mold spore or particle

> that is airborne. Id.

> Possible health effects associated with mold exposure generally

fall

> into one of

> three categories: allergic, infectious, or toxic. See, e.g., ACOEM,

> supra, at 1. First,

> a small but significant percentage of people suffer from mold

> allergies. See, e.g., id.

> at 2. Second, certain immunocompromised individuals may suffer

> opportunistic mold

> infections, usually in their lungs. See, e.g., id. at 3. Finally,

> ingestion of certain

> molds and mycotoxins growing on foods can produce a toxic effect.

> See, e.g., id. at

> 4. The effect can be quite serious, ranging from headache and

nausea

> to death. See,

> e.g., Coreen A. Robbins et al., Health Effects of Mycotoxins in

> Indoor Air: A Critical

> Review, 15 Applied Occupational & Envtl. Hygiene 773, 775 (2000).

> Despite media

> hype, there is no scientific proof that exposure to indoor mold

> through physical

> contact or inhalation produces a similar toxic health effect.3

> Fall Nat. Resources & Env't. 132 (2002) (describing studies

> conducted by the CDC,

> California Department of Health Services, California Research

> Bureau, Washington

> State Department of Health, and two individual scientists finding

no

> toxic effect).

> Some plaintiffs' experts have argued that certain animal studies

> establish the

> toxic effect of low-level chronic inhalation of indoor mold.

> However, the scientific

> community has found these studies lacking in scientific merit and

> the causal

> connection unproven. See, e.g., Yehudith Assouline-Dayan, supra

> (criticizing studies

> for various methodological errors and disanalogies to human

> pathophysiology);

> Robbins, supra (same).

> 8

> Although mold does cause allergic reactions or infections in some

> people, " t

> is not known * * * what quantity of mold is acceptable in indoor

> environments with

> respect to health. " Redd Statement, supra. " ecause individuals

> have different

> sensitivities to molds, setting standards and guidelines for indoor

> mold exposure

> levels is difficult and may not be practical. " Id.; see also CDC

> Q & A, supra, at Q.15

> ( " Standards for judging what is an acceptable, tolerable, or normal

> quantity of mold

> have not been established. " ).

> C. The Class Action Is Not An Appropriate Vehicle For Bringing Mold-

> Exposure Claims Because The Science Of Mold Does Not Permit

> Class-wide Proof And Individual Issues Will Predominate.

> Proof of a mold exposure claim will necessarily be dominated by

> individualized

> inquiries. Even if the plaintiffs were exposed to mold under

> laboratory-like

> conditions, the central questions of causation — whether and to

what

> extent a

> standardized dose of mold affected each of them — would demand a

> detailed inquiry

> into each plaintiff's medical history, lifestyle, and environment.

> And the individuality

> of each claim is even greater in real life, where the quantity and

> type of mold, the

> 9

> duration and method of exposure, and the cause of the mold growth

> itself are different

> in each case. The following sections describe various

> characteristics of mold and

> indoor mold exposure that serve to make mold-exposure

> claims " uniquely

> individualized " and hence to preclude class-wide proof in any

> singlebuilding/

> multiple-occupant class action. See Liggett Group, Inc. v. Engle,

> No. 3D00-

> 3400, slip op. at 11, 14 n.9, 16 (Fla. 3d DCA May 21, 2003)

> (decertifying class of

> smokers because, inter alia, " specific medical causation is

> inherently individualized "

> and " each class member had unique and different experiences that

> will require the

> litigation of substantially separate issues " ).

> 1. The amount and type of mold present in a building unit and the

> causes of that mold growth vary from unit to unit.

> Although mold is present everywhere, the extent and type of mold

> growth

> within a building can vary dramatically between apartments and even

> from room to

> room. The species of mold in a unit will depend on which spores

> entered when a door

> or window was left open or by becoming attached to clothing or

pets.

> See, e.g., CDC

> Q & A, supra, at Q.3. The extent of mold growth will depend on

> environmental factors

> such as humidity, temperature, airflow, and nutrient base; whether

> the mold has been

> left alone or disturbed; and whether any chemicals such as cleaning

> agents have been

> applied to the mold. See, e.g., Harv. Health Letter, supra, at 1.

> Thus, to determine the

> type and extent of mold growth in a particular apartment requires a

> first-hand

> investigation.

> 4 Although amici have chosen to focus on the personal injury

aspects

> of

> plaintiffs' claims, the necessity for individualized proof of

> causation with regard to

> mold in an apartment unit also undermines the ability to determine

> property damages

> claims on a class-wide basis. The uniqueness of each individual's

> apartment home,

> as well as other factors related to the effect of mold on physical

> substances, weigh

> against any attempt to certify a class limited to property damage

> claims (in the event

> plaintiffs were to seek to salvage their class in this way).

> 5 For example, " [a]flatoxin production by Aspergillus is dependent

on

> concentrations of O2, CO2, zinc, and copper, as well as physical

> location. " D.M. Kuhn

> & M.A. Ghannoum, Indoor Mold, Toxigenic Fungi, and Stachybotrys

> Chartarum:

> Infectious Disease Perspective, 16 Clinical Microbiology Reviews

> 144, 150 (2003).

> This toxin is not normally produced by mold growing on building

> materials. See, e.g.,

> 10

> Furthermore, many of the factors that affect mold growth in

> apartments depend

> on choices made by the occupants: presence and type of carpeting;

> type and

> positioning of furniture; presence, type and cleanliness of pets;

> temperature; use of air

> conditioning or alternate ventilation systems; whether and how

often

> doors or

> windows are left open; cleanliness habits of the occupants; and any

> alteration of the

> airflow in the unit (caused by, e.g., closed vents or general

> clutter). See, e.g., id.

> There is no single cause of mold growth in most apartments, but

> rather a large set of

> contributing factors. Thus, establishing the causes of mold growth

> in an apartment

> requires a detailed individualized investigation.4

> 2. The existence, amount, and type of mycotoxins produced are

> idiosyncratic to each instance of mold growth.

> Only a select group of molds produce mycotoxins. Robbins, supra, at

> 774.

> Moreover, " [m]ycotoxin production for a given species is highly

> dependent on growth

> conditions, such as nutrient availability, temperature, and

> humidity. " 5 Id.; see also

> Guido Fischer & Wolfgang Dott, Relevance of Airborne Fungi and

Their

> Secondary

> Metabolites for Environmental, Occupational and Indoor Hygiene, 179

> Arch

> Microbiol 75, 80 (2003).

> 11

> ACOEM , supra, at 4 ( " The amount (if any) and type of mycotoxin

> produced is

> dependent on a complex and poorly understood interaction of factors

> that probably

> include nutrition, growth substrate, moisture, temperature,

maturity

> of the fungal

> colony, and competition from other

microorganisms. " ). " Additionally,

> even under the

> same conditions of growth, the profile and quantity of mycotoxins

> produced by

> toxigenic species can vary widely from one isolate to another. " Id.

> at 4 (emphasis

> added). " t does not necessarily follow from the mere presence of

> a toxigenic

> species that mycotoxins are also present. " Id.; see also Harv.

> Health Letter, supra, at

> 2; EPA, Indoor Environments Division, Mold Remediation in Schools

and

> Commercial Buildings ( " EPA, Remediation " ) (2001), at 42, available

at

> http://www.epa.gov/iaq/molds/graphics/moldremediation.pdf (last

> updated June 25,

> 2001), Kuhn, supra, at 147. Because there are no known principles

of

> mycotoxin

> production (even for individual species), proof of the amount (or

> even the presence)

> of mycotoxins in a particular apartment requires a first-hand,

> particularized,

> investigation into the actual conditions in that unit.

> 3. The exposure of building occupants to mold and/or mycotoxins —

> even when they are present — depends on the specific

> environment and activities of the occupants.

> The primary method of exposure to indoor molds and mycotoxins is

> inhalation.

> 12

> See, e.g., California Department of Health Services, Stachybotrys

> Chartarum: A Mold

> That May Be Found in Water-Damaged Homes ( " CDHS, Stachybotrys " ), at

> http://www.dhs.ca.gov/ehib/ehib2/topics/stachygp00.doc (Nov. 2000).

> The amount

> of mold spores and fragments in the air depends on many

> environmental factors,

> including the growth substrate, ventilation and general airflow,

and

> physical

> disturbance. See, e.g., Rafa» L. Górny, Fungal Fragments as Indoor

> Air

> Biocontaminants, 68 Applied & Envt'l. Microbiology 3522 (2002).

Less

> obviously,

> differences in " carpeting type, pets, dust control measures, and

> humidification " affect

> airborne spore counts. Kuhn, supra, at 146 (citations omitted).

> Thus, even if an

> apartment has an elevated level of mold growth, it will not

> necessarily have an

> elevated level of airborne spores and fragments. See, e.g., Harriet

> M. Ammann,

> Washington State Department of Health, Is Indoor Mold Contamination

> a Threat to

> Health?, at http://www.doh.wa. gov/ehp/oehas/mold.html (last

visited

> May 21, 2003);

> ACOEM, supra, at 6. Also important to apartment residents' actual

> exposure levels

> is the amount of time they spend in their apartment homes. Finally,

> the timeline of

> remediation efforts will affect the actual exposure levels of

> occupants. For all of these

> reasons, even if two apartments had identical mold growth, the

> occupants would likely

> have different exposure levels, and the actual levels would not be

> ascertainable except

> by studying the particular conditions of each case.

> 13

> 4. There is no common effect of mold exposure: some people have

> no reaction to even elevated levels while others are hypersensitive

> to small doses.

> " Exposure to mold does not always result in a health problem. " Redd

> Statement, supra; see also CDC Q & A, supra, at Q.10. Studies

indicate

> that

> approximately 10% of the population have allergic antibodies to

> common molds, and

> that 5% are actually sensitized to mold and thus will suffer

> allergic symptoms from

> exposure. ACOEM, supra, at 2. Thus, 90-95% of people will not have

> an allergic

> response to mold in their apartments. Furthermore, the sensitivity

> levels of the 5-10%

> of people who are allergic to mold vary dramatically. Id. " What one

> person can

> tolerate with little or no effect, may produce symptoms in another

> similarly exposed

> individual. In fact, the reaction to both the amount and types of

> mold varies from one

> person to the next. " Minnesota Department of Health, Indoor Mold:

> Hazard

> Identification and Control, at http://www.health.state.

> mn.us/divs/eh/indoorair/mold/

> hazardid.html (last updated April 14, 2003); see also Redd

> Statement, supra. Because

> each person reacts (or doesn't react) to mold differently, "

> tandards for judging what

> is an acceptable, tolerable, or normal quantity of mold have not

> been established. "

> CDC Q & A, supra, at Q.15; see also Redd Statement, supra.

> For those who do suffer from mold allergies, the symptoms caused by

> exposure

> " are most commonly experienced as allergic asthma or allergic

> rhinitis (`hay fever'). "

> ACOEM, supra, at 1. A person with mold-induced " hay fever " may have

> only a mild

> 14

> runny nose or may experience itching/watering eyes, general

> congestion, atopic

> dermatitis, or asthma symptoms. See, e.g., id. at 2. Although some

> individuals'

> symptoms get worse if they are exposed to a greater quantity of

> mold, for others moldallergy

> symptoms are not directly correlated with the amount of exposure.

> See, e.g.,

> Bush, supra, at 5-6; Fischer, supra, at 77. And " [allergic]

reaction

> is highly specific[;]

> it is possible that even closely related mold species may cause

> allergy, yet that allergy

> may not be detected [upon exposure to another mold]. " Ammann,

supra;

> see also

> Bush, supra, at 14-15. The severity of an individual's allergic

> reaction to a given

> species and quantity of mold (and whether there will be one at all)

> cannot be known

> without an individualized analysis of her allergic sensitivities.

> 5. Symptoms associated with mold allergies are non-specific and

> may be caused by many environmental and health factors.

> The allergic symptoms commonly caused by mold " are very nonspecific

> and

> may be related to exposure to other sources (such as dust mites,

> animal dander, pollen

> or other allergens) or to infectious agents such as viruses that

> cause common colds or

> flu. " CDHS, Stachybotrys, supra. In general, moreover, people who

> exhibit allergic

> responses to mold are also allergic to other environmental

> allergens. ACOEM, supra,

> at 2. The actual cause of an individual's allergic symptoms,

> therefore, cannot be

> attributed to mold in her apartment (or to mold at all) without a

> medical analysis of

> her allergic sensitivities and other health conditions.

> 15

> 6. Allergic reactions to mold may be exacerbated by a person's

> behavior, work, or other factors.

> Sensitivity to mold can be heightened, and symptoms of mold

> allergies can be

> exacerbated, by many factors, including other allergies, exposure

to

> certain chemicals

> or biological agents, and various health-related lifestyle choices.

> For example,

> " marijuana smoking may lead to development of fungal

> hypersensitivity reactions, "

> and smoking in general will make allergic symptoms worse

(especially

> respiratory

> symptoms). Bush, supra, at 6. A person's work may also cause or

> exacerbate allergic

> symptoms. See, e.g., Fischer, supra, at 77 ( " professions in the

> fields of agriculture,

> forestry * * * food production, * * * [and] [w]aste collectors are

> at increased risk " ).

> Finally, other general health conditions, including " mental

stress, "

> are correlated with

> higher levels of allergic symptoms. See, e.g., Assouline-Dayan,

> supra, at 196. Even

> if an individual is experiencing an allergic reaction to mold in

her

> apartment, an

> individualized analysis may reveal that other factors are

> contributing to her symptoms

> or that she is responsible for exacerbating her condition.

> 7. Individuals who suffer from asthma may experience varying

> responses to mold in the air, but asthmatic symptoms can be

> caused or exacerbated by many factors.

> " Molds can trigger asthma attacks in persons who are allergic

> (sensitized) to

> molds. The irritants produced by molds may also worsen asthma in

non-

> allergic (nonsensitized)

> people. " EPA, Remediation, at 40. However, most individuals will not

> 6 Molds do not cause asthma to develop. They only exacerbate

> symptoms in

> people who already suffer from asthma. See, e.g., Redd Statement,

> supra.

> 16

> have an asthmatic response to inhalant mold because they are not

> asthmatic.6 See,

> e.g., 1 American Academy of Allergy, Asthma, and Immunology, The

> Allergy Report

> ( " AAAAI, Allergy " ) at 2 (2001), available at

> http://www.theallergyreport.org/

> reportindex.html (approximately 15 million Americans are

asthmatic).

> Among

> asthmatic individuals, " [t]he types and severity of symptoms

depend,

> in part, on the

> types of mold present, the extent of an individual's exposure, the

> ages of the

> individuals, and their existing sensitivities or allergies. " EPA,

> Remediation, supra,

> at 40.

> Much like general allergic symptoms, asthma may be caused or

> exacerbated by

> many environmental factors. Animal dander, dust mites, pollens,

> tobacco smoke, air

> pollution, perfumes, and changes in humidity can all be " triggers "

> for asthma. See,

> e.g., 2 AAAAI, Allergy, supra, at 51-53. Other individuals may

> suffer asthma

> symptoms in response to aspirin, sulfites, or beta-blockers. See,

> e.g., id. And " the

> most common cause of asthma symptoms " is " viral respiratory

> infection. " Id. at 53.

> The causes of an individual's asthma symptoms (and any exacerbating

> effects) cannot

> be determined without an individual medical evaluation.

> 17

> 8. Individual testing is necessary to identify the source of a mold

> infection.

> Certain species of mold (e.g., Aspergillus fumigatus) may infect

the

> lungs or

> other opportunistic sites within individuals who have weakened

> immune systems.

> See, e.g., Fischer, supra, at 76; EPA, Remediation, supra, at 41.

> Because a mold

> infection involves the growth of a particular species of mold in or

> on the human body,

> potential sources of the infection can be either confirmed or ruled

> out through

> individual testing. See ACOEM, supra, at 3. Although it may be

> impossible to

> determine the actual source of the infection, it is possible to

rule

> out certain potential

> sources, such as an individual's apartment, if the relevant species

> is not found there.

> Therefore, individual testing is required to identify the cause of

a

> mold infection.

> 9. Because there is no proven link between indoor mold exposure

> and health effects other than exacerbation of existing allergies

> and asthma, to the extent any member of the class seeks to recover

> for any other health effects, there is no conceivable way in which

> causation could be established on a class-wide basis.

> Despite widespread media hype over " toxic mold, " scientific study

> has not

> established any connection between exposure to indoor mold and any

> effect other than

> allergies, asthma, or infections. See, e.g., authorities cited at

> note 3, supra. Amici

> believe that a toxic effect from inhalation of indoor mold cannot

be

> proved — either

> in a class action or an individual suit — given the current state

of

> the science.

> However, any attempt to do so in this case cannot possibly be

> accomplished on a

> class-wide basis. Among many potential subjects of individualized

> proof, there would

> 18

> have to be evidence that the individual was susceptible to the

> mycotoxin in question,

> proof that the mycotoxin was actually present in the apartment and

> that the individual

> was exposed to a dose (whether low-level chronic or a single large

> dose) exceeding

> her tolerance level, proof that this particular dose of inhaled

> mycotoxins can cause

> certain symptoms, proof that the individual suffered those

symptoms,

> and proof that

> the individual's symptoms do not have another scientifically

> recognized cause.

> * * * * *

> In sum, these and other individual factual issues would inevitably

> swamp any

> common ones in a single-building/multiple-occupant mold-exposure

> case, making

> class status improper under Florida Rule of Civil Procedure 1.220(

> (3). See, e.g.,

> Braun v. , 827 So. 2d 261, 267 (Fla. 5th DCA 2002) ( " Where

> both liability

> and damages depend on individual factual determinations, resolution

> of these claims

> can only be decided on an individual basis which is inconsistent

> with the commonality

> requirement for class actions. " ).

> II. THIS CASE CANNOT BE TRIED AS A CLASS ACTION WITHOUT

> VIOLATING THE DEFENDANTS' DUE PROCESS RIGHTS.

> If a single tenant living in defendants' apartment building were to

> sue for

> injuries allegedly caused by mold in her apartment, she would have

> to prove by

> competent admissible evidence, among other things, that: (i) there

> was mold growth

> in her apartment, (ii) the mold growth was caused by the

defendants'

> negligence, (iii)

> she was exposed to a certain type and amount of mold, (iv) she was

> biologically

> 19

> susceptible to that mold exposure, (v) she actually suffered from

> certain relevant

> symptoms, and (vi) her symptoms were caused by the mold in her

> apartment rather

> than other environmental or health-related factors. She would also

> have to prove that

> she suffered damages, and in what amount.

> For their part, defendants would have a right to present all of the

> evidence

> available to them under Florida law. See, e.g., Lindsey v. Normet,

> 405 U.S. 56, 66

> (1972) ( " [d]ue process requires that there be an opportunity to

> present every available

> defense " ) (quotation and citation omitted). Specifically, they

would

> have the right to

> present rebuttal evidence on each element of the plaintiff's case,

> including evidence

> that: (a) the mold growth was caused or made worse by the

> plaintiff's behavior, (

> the specific type and/or quantity of mold in her apartment has not

> been proven

> scientifically to cause the symptoms she alleges, © she is not

> biologically susceptible

> to the mold in her apartment (e.g., she is not allergic to mold or

> to that species of

> mold), (d) although there is mold in her apartment, for various

> reasons she did not

> receive a significant dose (e.g., she was rarely present in the

> apartment), (e) any mold

> in her apartment did not produce mycotoxins (if she is attempting

to

> establish a toxic

> effect), (f) her symptoms were caused by another source (e.g.,

> exposure to another

> allergen or a pre-existing health condition), and/or (g) her

> symptoms were exacerbated

> by another environmental condition or her own behavior (e.g.,

> smoking).

> In the class action setting, too, no claimant's right to collect

> damages for mold

> 7 The trial court avoided these issues by failing to explain how it

> intended to

> manage this case as a class action. Under federal case law, which

> Florida courts deem

> " persuasive authority " (Engle, slip op. at 11 n.5), that omission

> alone justifies

> reversal. See Castano v. American Tobacco Co., 84 F.3d 734, 740

(5th

> Cir. 1996).

> 20

> exposure could be determined without individualized proof on these

> issues. See

> Engle, slip op. at 31 ( " Specific medical causation and legal

> causation, along with other

> elements of liability, must be established on an individualized

> basis. " ); id. at 17

> ( " affirmative defenses and damages must be litigated

individually " ).

> Even if the

> claims of hundreds of tenants were lumped together in a single

> action, each plaintiff's

> burden to make these separate showings, the defendants' right to

> investigate and

> challenge each plaintiff's evidence and to offer individualized

> defenses, and the trial

> court's duty to make individualized case-by-case findings on these

> issues would be

> undiminished. Id. at 60-61 n.48 (class action device may not be

used

> to " alter the

> substantive rights of the parties in [the plaintiffs'] favor " ).

> Thus, if this case is

> allowed to proceed as a class action, the trial will either be

> dominated by individual

> issues for each of hundreds of class members, or it will violate

the

> due process clause

> by relieving plaintiffs of their obligation to prove each element

of

> their case and

> depriving defendants of their right to present evidence in their

> defense.7 Because

> neither alternative is permissible, this class should be

decertified.

> CONCLUSION

> The Court should reverse with instructions to decertify the class.

> Respectfully submitted this 27th day of May, 2003.

> __________________________________

> Robin S. Conrad Kantor, Florida Bar No. 0111901

> NATIONAL CHAMBER Evan M. Tager

> LITIGATION CENTER, INC. Carl J. Summers

> 1615 H Street, N.W. MAYER, BROWN, ROWE & MAW

> Washington, D.C. 20062 1909 K Street, N.W.

> (202) 463-5337 Washington, D.C. 20006

> (202) 263-3000

> Counsel for Amicus Curiae the Attorneys for Amici Curiae the

Chamber

> of

> Chamber of Commerce Commerce of the United States, the National

> of the United States Multi Housing Council, the National

> Apartment Association, the National Leased

> Housing Association, the Building Owners

> and Managers Association International, the

> National Association of Industrial and

> Office Properties, the Florida Apartment

> Association, the National Association of

> Real Estate Investment Trusts, Inc., and the

> Real Estate Roundtable

> CERTIFICATE OF SERVICE

> It is hereby certified that copies of the foregoing Brief of Amici

> Curiae the

> Chamber of Commerce of the United States, the National Multi

Housing

> Council, the

> National Apartment Association, the National Leased Housing

> Association, the

> Building Owners and Managers Association International, the

National

> Association

> of Industrial and Office Properties, the Florida Apartment

> Association, the National

> Association of Real Estate Investment Trusts, Inc., and the Real

> Estate Roundtable in

> Support of Defendants/Appellants were sent, by overnight delivery,

> to:

> Joy Spillis Lundeen, Esq.,

> STEARNS WEAVER MILLER WEISSLER

> ALHADEFF & SITTERSON, P.A.

> Museum Tower, Suite 2200

> 150 West Flagler Street

> Miami, Florida 33130

> Counsel for Plaintiffs/Appellees

> Rodolfo Sorondo, Jr.

> HOLLAND & KNIGHT LLP

> 701 Brickell Avenue, Suite 3000

> Miami, Florida 33131

> Counsel for Defendants/Appellants

> on this 27th day of May, 2003.

> __________________________________

> Kantor, Florida Bar No. 0111901

> Attorney for Amici Curiae

> CERTIFICATE OF COMPLIANCE

> It is hereby certified that the foregoing Brief of Amici Curiae the

> Chamber of

> Commerce of the United States, the National Multi Housing Council,

> the National

> Apartment Association, the National Leased Housing Association, the

> Building

> Owners and Managers Association International, the National

> Association of

> Industrial and Office Properties, the Florida Apartment

Association,

> the National

> Association of Real Estate Investment Trusts, Inc., and the Real

> Estate Roundtable in

> Support of Defendants/Appellants is in compliance with the font

> requirements of

> Florida Rules of Civil Procedure 9.210(2).

> __________________________________

> Kantor, Florida Bar No. 0111901

> Attorney for Amici Curiae

>