LA Weekly: The Mold Rush and the case of Sharon Kramer and Bruce Kelman

[Guest guest]

July 24th, 2008

LA Weekly: The Mold Rush and the case of Sharon Kramer and Bruce

Kelman

Overlawyered - New York,NY*

» by Ted

http://overlawyered.com/2008/07/la-weekly-the-mold-rush-and-the-case-

of-sharon-kramer-and-bruce-kelman/

Welcome LA Weekly readers; this website is mentioned and I am quoted

in a less-than-entirely-coherent story about mold litigation in this

week's LA Weekly. The story focuses on Sharon Kramer, who has given

up a full-time career to pound the drums over her fight with her

insurer alleging mold harms after a remediation; and an unfortunate

lawsuit brought by scientist Bruce Kelman against Kramer. Kelman

only wants an apology from Kramer for her issuing a press release

that falsely claimed he lied under oath; Kramer has refused, and

Kelman is still stuck in litigation where he will likely come up

with a Pyrrhic victory. (Kelman's work writing a layperson's guide

to the science of mold for the Manhattan Institute is central to the

libel allegations.) Kramer, meanwhile, blames her aging on exposure

to mold, rather than, say, turning 56. The story suffers for

treating Brockovich as the archetype of a justified plaintiff;

Overlawyered readers know better.

The story is worthwhile for one new tidbit of information, the

poetic justice facing Ed McMahon for his bogus mold lawsuit:

In 2003, another raft of huge mold news stories broke nationwide,

and Kramer paid close attention. The most famous, and strangest, was

that of ny Carson's sidekick Ed McMahon, who took a $7.2 million

settlement after suing for $20 million in his claim that mold made

him and his wife sick — and killed his sheepdog, Muffin. …

In the McMahon case, some see the tragic unraveling of a popular

public figure egged on by an attorney, Allan Browne. No hard,

scientific evidence was ever made public proving that McMahon or his

dog suffered the specific mold allergies and immune-system problems

that, in rare cases, can be set off by household mold.

Since then, McMahon has become a sad figure, with a series of new

troubles, including his default this year on his palatial 7,000-

square-foot home on Mulholland Drive, involving a $4.8 million loan

from the infamous lender Countrywide. And he just sued again,

bizarrely accusing investment tycoon Day of having in his

mansion a poorly lit staircase on which McMahon says he fell during

a party last year. McMahon is belatedly alleging he broke his neck

but that doctors missed it.

The longtime TV pitchman spent years convincing the courts and the

general public that his home contained rampant, poisonous, deadly

mold strong enough to fell a large dog. McMahon talked it up for so

long that he now faces the daunting task of selling a home he can no

longer afford, that people believe is riddled with toxins.

Also interesting to me is the story's quote of me. I gave an e-mail

interview to the author, Heimpel in February. It's

interesting what gets used and what doesn't get used, so I am going

to attach the entire interview.

Here's the full February 28 interview:

Why did the mold litigation blob form?

Entrepreneurial lawyers saw an opportunity to use junk science to

blame deep pockets for a variety of idiopathic diseases. We saw it

with powerlines, we saw it with Bendectin, we still see it with

vaccines. Every once in a while, trial lawyers completely fool the

legal system, and make billions with one of these theories, as they

did with silicone breast implants. " Toxic mold " was just another

stab at the litigation lottery.

Why has it ebbed?

Has it ebbed? I still see reports of an occasional verdict,

including a big $22 million settlement in 2005, and there were

thousands of cases pending when I last saw it. Rep. Conyers just

introduced legislation on " toxic mold " last year, so someone is

still lobbying about it. Rationally, it should have ebbed, because

the toxic mold suits are meritless. The most notorious for-hire

plaintiffs' mold expert, Ordog, was disciplined in 2006, which

likely ended his $975/hour litigation consulting career, and likely

a number of cases built around his testimony. Together with NIH,

Institute of Medicine, and CDC reports, and insurance policies that

more explicitly excluded recovery based on theories of injury from

mold, and tort reforms in Texas, where mold litigation was the

biggest business, plaintiffs' lawyers may have sought, er, greener

pastures.

How does the fear of mold tie into our culture of fear?

What does this fear of an enigma say about our society?

Fascinating, isn't it? We coexist with mold for thousands of years.

My friend, Walter Olson of the Manhattan Institute has said

sarcastically " How unfortunate must we be to live in the twenty-

first century, when plaintiffs' lawyers have discovered the terrible

health effects! "

Economic incentives have a lot to do with it: trial lawyers have an

economic incentive to describe something relatively innocuous–

vaccines, mold, powerlines, silicone breast implants, Bendectin–as

something deadly and fit it into the fictional Brockovich

paradigm, which appeals to jurors' preconceived notions. (

Brockovich herself has brought a number of bogus lawsuits trying to

invoke this paradigm–including over mold.) Low-quality scientists of

a variety of levels of sincerity are given the economic incentive to

take the same position. Journalists have the economic incentive to

tell a story that fits the paradigm whether or not it's true,

because the victims-and-villains storyline that could affect the

viewer attracts eyeballs. The three work together symbiotically: the

expert witness feeds stories to the lawyer and vice versa; the

lawyer feeds stories to the journalist with the expert; the

journalist creates publicity that generates business for the lawyer

and the expert witness, which in turn creates more stories for the

journalist.

The culture of fear is a lot larger than that (others take advantage

of it), but I think the reason it is so much larger in America is

because only here do we make people millionaires for inventing new

things to be afraid of.

Who has made the most money off the mold litigation blob?

Attorneys, though the " mold remediation " business may well have done

pretty well for itself.

And here's how it was translated in the news story:

A lot of people are pulling for Kelman — to the great shock of

Kramer, long accustomed to being the Brockovichesque heroine. Ted

, a lawyer and contributor at overlawyered.com, a Web site that

tracks suspect litigation, says, " Entrepreneurial lawyers saw an

opportunity to use junk science. … We saw it with power lines, we

saw it with Bendectine " — a discontinued drug used to lessen morning

sickness in pregnant women. " Every once in a while, trial lawyers

completely fool the legal system and make billions with one of these

theories, as they did with silicone breast implants. `Toxic mold'

was just another stab at the litigation lottery. "

I wasn't asked at all about Kelman and Kramer, but am portrayed as

having an opinion about it. And my observations about Brockovich and

vaccines were deleted. Note also that " Bendectin " was misspelled,

though I spelled it correctly.

As mildly annoyed as I am about the story, Sharon Kramer is furious

for being treated as anything less than a heroic martyr, and has had

an army of supporters leaving angry comments at the LA Weekly

website.