The challenge of mold: Part 2, the liability

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The challenge of mold: Part 2, the liability

March 3, 2009 | Environmental, Health, Homeownership, Legal, Mold, US News

[Continued from yesterday's Part 1.]

Photo's

http://affordablehousinginstitute.org/blogs/us/2009/03/the-challenge-of-mold-par\

t-2-the-liability.html

Yesterday's post on the challenge of mold in housing ended with and

Meng having decided to sue their home's builder, Drees Company, because the

whole family had got sick very shortly after moving in.

What six weeks in a moldy house can do to you

Untangling the Washington Post story into its logical sequence, the Mengs went

in to court seeking to prove the remaining five parts of their logic chain:

4. The mold showed up after the house was built

The Mengs had identified some punch-list items, which Drees had corrected:

Drees told the Mengs that the windows had been fixed, but puddles in the

basement persisted after the family moved into its $900,000 home in the

Chantilly area of Loudoun, the Mengs said.

The factual question is whether there was mold. I presume there must have been.

They later learned that Drees had not allowed the house's frame to dry before

installing drywall, creating the perfect conditions for mold to thrive all over

the house, the Mengs said.

This too is a factual issue to be determined at trial, but let's assume it's

right.

Chin S. Yang, a mycologist who testified as an expert witness in the trial, said

that mold grows in houses when excessive moisture is present and that the

problem became more common after drywall largely replaced plaster in home

construction.

Dr. yang certainly seems to be an expert on the subject.

Co-author of a text on the subject

He said the paper in drywall contains sugar polymers that can serve as food for

organisms.

As I posted in dreamers versus plumbers, it's not how you design it that mattes,

it's how you build it. As I noted, it's dangerous to flout Padfield's law of

complicated structures.

5. Removing the mold coincided with their return to health

Meanwhile, the Mengs applied the engineering approach: change something and see

what happens.

In April, Meng took a four-day trip to burg. Her headaches stopped

completely, she said, and " the pain just lifted. " When she returned home, the

migraines quickly returned and the next weekend she was hospitalized again.

They had no choice but to move, the Mengs said.

Taking only their beds, a couch, a table, some teddy bears and clothes that had

been dry cleaned, the family moved to a South Riding townhouse that April. The

sickness continued, but to a lesser degree, they said. The mold had contaminated

their possessions and had followed them to their new home, they later learned.

Makes you believe in malicious spirits, doesn't it?

Last March, the Mengs went to see Ritchie Shoemaker, a doctor on land's

Eastern Shore who specializes in illnesses caused by water-damaged buildings. He

said mold and other microbes in the house had produced toxins that made the

Mengs sick.

Shoemaker said their possessions had been contaminated, too, and the family

threw away almost everything, including family photos, baptismal gowns and toys.

" He said we had to get rid of everything we had, " Meng said. " When we

moved [again] . . . we didn't even bring a sock. "

The Mengs moved to Aldie in March last year. In September, they went to a

bio-detox center in South Carolina for about a month to remove toxins that had

built up in their bodies. The children missed about a month of school, and

" that's been challenging, " Meng said.

Among other treatments, the Mengs sat in 150-degree saunas for three hours a

day.

From the Washington Post:

Meng gets her daily oxygen treatment at a rented home in Aldie, where the

family moved last March. The Mengs moved to South Riding before that.

Since the Mengs all got sick, and were not sick until they moved in to the

house, one can point to the house as a probable cause. Further, if mold spores

had gone into their lungs, it could be quite some time before they are flushed

out.

" I felt like I got my life back, " Meng said, though she and other family

members still have problems. and Kaleigh have asthma. and Kaleigh

are on a daily regimen of oxygen treatments, and has painful muscle spasms

in her neck and shoulders from time to time.

6. They sued the home builder

The Mengs were unable to get satisfaction from their builder:

" We kept on hoping that Drees was going to do the right thing, " Meng said.

" All we asked them to do was put us up somewhere while they got the house

completely cleaned . . . and they wouldn't do it. "

They filed a lawsuit against Drees in Loudoun County Circuit Court that August.

Litigation is a blunt instrument. But it gets the mule's attention.

Oh, you got a copy of our filing?

Meng, who co-owns a company that automates systems in commercial buildings,

said he never wanted it to go to court. " Court is the last resort. . . . We

still trusted them. We had expected them to come through for us. "

7. The home builder said it didn't happen, and if it did, it wasn't our fault

In court, the company:

[1] Denied that the way it assembled the house led to the mold

[2] Said it was not responsible for cleaning it up

[3] Said it did not think that the mold made the Mengs sick

Though this three-tier defense sounds risible out of context, it's actually

fairly reasonable.

We're still constructing our defense

Working backwards:

[3] The company needn't concede that the mold made the Mengs sick, although the

overwhelming preponderance of evidence (presented in the WaPo article) favors

that conclusion.

[2] Is a consequence of [1].

[1] Is the core question – was the company's construction faulty? If it was,

and if that led to mold, it's hard to avoid being found liable, since the Mengs

are clearly sick, and clearly have been at their wits' end for some time.

As one might expect, given that summary …

8. The jury found for the plaintiffs

A Loudoun jury recently awarded the family $4.75 million, among the largest

awards in a mold case in Virginia.

But by no means the only one, as the attached newspaper clipping shows.

$22.6 million for some timbers

Jurors said the home's builder, the Drees Co., was negligent and violated the

Virginia Consumer Protection Act. They said the company was responsible for the

couple's health problems but not those of Emma, their youngest daughter.

Litigators whom I know are divided on jury trials. Some like them when there is

a -versus-Goliath story, or a consumer-versus-company tale, counting on the

jury's natural sympathy for the party more like themselves – particularly if

personal-injury is involved. My own experience (as an expert witness) suggests

that juries (except in some states that I'll decline to name) are wiser than we

give them credit for.

Barbara Drees , vice president of marketing for Kentucky-based Drees,

declined to comment on the case because attorneys for Drees are going back to

court Friday [that is, February 6 – Ed.] to ask the judge to set aside the

verdict.

Drees Homes recently won a 2008 award as being among `America's Best Builders.'

Multiple generations of Drees – Drees, Ralph Drees, and Barbara Drees

I'm sure they really wish this would just go away – which suggests that they

think the award must be way too large

Kurt C. Rommel, an attorney for Drees, said it would be inappropriate to comment

until the judge enters a decision on the jury verdict.

Rommel thinks it inappropriate to comment

The Mengs still own the Chantilly house, but they said it would cost about

$400,000 to remove the mold and make necessary repairs. They're not sure what to

do with it, they said, and are reluctant to sell it for fear it would cause

another family health problems.

The Mengs said problems with the house have cost them hundreds of thousands of

dollars in medical expenses, legal fees, discarded furniture and other expenses.

But they can be replaced.

" If you don't have your health, " Meng said, " it doesn't matter what you

have. "

I smell a settlement coming, with a confidentiality agreement provision.

9. The moral: watch your subcontractors!

For developers, there's an obvious moral.

Don't be a horse's ass?

" What you have is [Drees] not using common sense, " said H. Wise, the

Mengs' attorney. " They didn't supervise their subcontractors. . . . They didn't

care when water intruded into the house during construction. "

Whatever the outcome, whatever the settlement, that is the lesson: supervise

your subs!

You have no idea what's going on under the surface

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