HVAC SYSTEMS AND MOLD

John Armstrong, PartnerHorwitz, Cron & Armstrong, LLP

www.hcalaw.bizjarmstrong@hcalaw.biz

What Is Mold?● Molds are fungi that grow in the form of

multicellular filaments called hyphae.● Madigan M; Martinko J (editors). (2005).

Brock Biology of Microorganisms (11th ed.). Prentice Hall. ISBN 0131443291. OCLC 57001814.

● The “blue” in blue cheese● Active Ingredient Penicilian ● Active Ingredient in Sick Building

Syndrome: “Black Mold” “Toxic Mold” Stachybotrys Chartarum (“S. Atra”)

What Causes Mold?● Occurs Naturally Everywhere, Indoors and

Outdoors● Moisture (water/water vapor)● Food source (organic material, dust)● Lack of Light (Darkness) http://www.epa.gov/mold/moldbasics.html

How Do We Stop Mold?

● Stop/Dry the Water/Moisture● Eliminate Food Source● Let the Sunshine In● Clean, Wipe/Dust, Use Bleach/Fungicides

Who is responsible for the HVAC When the HVAC Causes Mold?

● Architect? ● General Contractor? ● Subcontractors?

● HVAC Designer?● HVAC Installer?● Plumber?● Fire Sprinkler Installer?● Landscaper/Landscape Architect?

Why Do We Care Who Is Responsible for the HVAC

System?● If the architect of record, the

developer/property owner is responsible for negligent HVAC design issues

● If the general contractor, the contractor group is responsible (i.e., general, HVAC designer, and HVAC installed)

● What Role Did Our Insured Play?

How Do We Know Who Is Responsible for the HVAC

System?● Look at the project contracts

● Who assumed responsibility for the HVAC design?

● Architect?● Builder?● HVAC Installer?

● What kind of contracts? ● Design Only?● Design/Build?

How Do We Know Whether We Have A Design Or Installation

Problem With the HVAC System?

● Going to need HVAC experts;● Design expert● Installation expert● Mold Investigator

● Forensic scientist; mold remediator re causation issues

● Is Mold Problem Systemic Or Situational?

● Systemic probably design● Situational probably installation issue

What Do We Want to Ask Our HVAC Experts?

● Who assumed responsibility for the HVAC Design in the Contracts and in Reality?

● What Was the HVAC Designer Designing For?● “Closed” Building● Openable Windows?● Hospital “Clean Room”?

● Did Installer Follow Design Or Design Intent?

● Were Other Contractors Involved? ● Sloped Window Sills? Mold-Resistant Paint

Used?

What Do We Want to Ask Our HVAC Experts?

● Regarding Design, Did the HVAC Designer Take Into Account What the Building Was Being Used For?

● Did HVAC Designer Account for Where Building Was? ● Humid Area? Desert? Cold?

● Reasonable Compromise Between Energy Efficiency vs. Building’s Ability to “Breathe”● Any Special Regulations Affect Design?

What Do We Want to Ask Our Mold Experts?

● What Is Causing Mold?● Where is the Moisture Coming From?

● Condensation/humidity in air?● Pipe leaks?● Wet construction materials?

● What Tests to Determine Point Source of Moisture/Cause of Mold?

● What kind of Mold? ● Toxic?

How Do We Solve HVAC Mold Problems?

● Remove/remediate existing mold ● Stop Moisture Intrusion Causing Mold● Implement Mold Resistant Repair Plan

● Installing more powerful/dryer HVAC unit?● Sloping window sills?● Increase sunlight/decrease darkness?● Using mold/mildew resistant paint ● Educating people re importance of opening

windows, cleaning/drying, and using bleach/fungicides

Can Mold Kill?● Mold Can Cause Health Problems But No

Deaths Linked By U.S. Center for Disease Control By Mold Exposure Alone● http://www.cdc.

gov/ncezid/dfwed/mycotics/related_links.html● http://www.cdc.gov/mold/links.htm● http://www.igotmold.net/toxic-black-mold-

symptoms/ ● But “Eggshell Skull” Plaintiffs at Risk

● Cancer; HIV+; Organ Transplant Recipients ● Weakened Immune Systems

LEGAL ISSUES IN MOLD LITIGATION

● What caused the mold?

[Liability]

● Were injuries caused by mold

exposure? [Damages]

● Admissibility of expert opinion

testimony [Evidence]

● Statutes of limitation [“SOL”]

STATUTES OF LIMITATION● A review of the Statute of Limitations indicates that

the statute that applies depends on the nature of the injury.

● FINANCIAL INJURY:

● 2 years● Code of Civil Procedure § 339(1) applies to financial injury for

mold claims.

● INJURY TO OR LOSS OF REAL PROPERTY OR

TANGIBLE PERSONAL PROPERTY:● 3 years● Code of Civil Procedure § 338(b) is applicable.

● INJURIES TO PERSONS:

● 2 years● Code of Civil Procedure § 335.1 is applicable.

STATUTE OF LIMITATIONS – TOXIC TORT CASES

● A Special Limitations Statute, which incorporates common law “discovery rule” applies to toxic tort cases under California Code of Civil Procedure § 340.8.

● This statue applies to ALL civil actions for injuries from exposure to a “hazardous material or toxic substance.”

● Its application to mold cases is uncertain,

STATUTE OF LIMITATIONS PERSONAL INJURY – CONSTRUCTION DEFECT LITIGATION

● Deadline for Patent Defect is 4 years after the improvement is substantially completed (if action is against persons involved in the improvement, i.e. designers, planners, contractors, etc. (Cal. Code of Civil Procedure § 337.1(a)).

● If injury occurs in fourth year after improvement is substantially completed, the action must be brought within 1 year after date of injury, irrespective of date of death, and not more than 5 years after improvement is substantially completed. (Cal. Code of Civil Procedure § 337.1(b)).

● “Patent” means a deficiency which is apparent by reasonable inspection (Cal. Code of Civil Procedure § 337.1(e))

● Caveat: statute does not apply to owner-occupied single unit residences. (Cal. Code of Civil Procedure § 337.1(f))

STATUTE OF LIMITATIONS – LATENT DEFECTS

● Actions for latent defects in the development/improvement of real property must be filed:

● Within 3 years of discovery for negligence; ● Within 4 years of discovery for breach of

contract/warranty; and,● Within 10 years of the date of substantial completion

for ALL OTHER CLAIMS (Code of Civil Procedure, § 337.15(a)).

● California courts have NOT held that these Statutes of Limitation apply to personal injury claims.

● Generally, for personal injury claims, the deadline is 2 years (Code of Civil Procedure, § 335.1) from the date of the incident or injury.

Assuming the plaintiff isn’t time-barred, what next?

● Hire an expert!

Expert’s Role in Mold Cases

● Success Depends On The Admissibility And Credibility Of Experts● Experts include industrial hygienists,

mycologists, toxicologists,

aerobiologists, microbiologists,

analytical microscopists,

neuropsychologists, immunologists,

M.D.s, and construction experts

Admissibility of Expert Testimony

● Split In Federal and State Courts

● Federal Courts (And Many States)

Follow U.S. Supreme Court’s

Daubert Decision

● Others, Like California, Follow

The “Kelly-Frye” Rule

Daubert And Its Progeny

● All Federal And Some State Courts Admit Expert Opinion Testimony “Only If” The Expert’s Opinion Is “Reliable.”

● Focuses On The Scientific Method

● Is The Expert’s Theory Provable/Proven?● Were Proper Procedures Followed?● Was The Theory Reviewed By Other

Credible Experts?● Acceptable Margin of Error?● Is The Theory Accepted By An Acceptable

Number of Other Experts?

California’s Kelly-Frye Rule

● Is “Scientific” Evidence At Issue? (People v. Ward—California Supreme Court holds rule does not apply to psychiatry)

● Is The Expert’s Theory Generally

Accepted By The Scientific Community?

● Is The Expert’s Theory “Novel”?

California’s Kelly-Frye Rule

● More Liberally Admits Expert Opinion Testimony—Except For “Novel” AND Scientific Evidence

● If Expert’s theory involves

“Science” and is “Novel,” THEN Offering Party Must Show Theory is “Generally Accepted” By the Relevant Scientific Community for Expert’s Opinion to be Admitted

Where Kelly-Frye Bars Experts

● “Voice-Print” Identification—California Supreme Court holds identification device not generally accepted by a recognized body of scientists (People v. Kelly)

● Lie Detectors (Frye, federal case

holding not generally accepted)

● Truth Serums (Ramona v. Superior Court, California Appellate Court finds not generally accepted as reliable)

Kelly-Frye’s Application to Mold Litigation

● Is the theory regarding the cause of the mold “novel” and “scientific”?

● Is the theory that the mold caused

plaintiff’s harm “novel” and “scientific”?

● Ordinarily DOES NOT APPLY to

Medical and Psychological Experts (Wilson v. Phillips (1999))

Issues Related to Kelly-Frye: The “Cottle” Motion

● Cottle v. Superior Court (1992) 3 Cal. App. 4th 1367, appellate court approves requirement that plaintiff must make prima facie case that defendant caused plaintiff’s injuries

● Facts: 175 homeowners and renters

sued a developer for personal injuries allegedly sustained from exposure to toxic waste

More on Cottle

Trial Court Required Each Plaintiff To Identify:

● The injury-causing chemical or toxic

substance;● Dates, manner & place of exposure;● Nature of injuries;● Each medical expert who supported

each plaintiff’s injury claim

The Cottle Motion● Each Cottle plaintiff who failed to

identify one or more of the items required by the trial court had his or her claim DISMISSED

● RESULT: Defendants now bring

Cottle motions before trial to require plaintiffs to make a prima facie case on liability and damage

● LIMITS: May not work outside

complex, multi-party cases

Other Limits On Cottle Motions

● Cannot require plaintiffs to submit expert declarations

● Cannot avoid requirement that

defendants bring summary judgment or other dispositive motion

● BUT: Trial court can order plaintiff to

state facts supporting claims(Hernandez v. Superior Court

(2003))

How Do Juries React To Mold Claims?

● Jury verdicts range from defense verdicts to multi-million dollar recoveries

● Why?

● Credibility of Claims● Credibility of Experts● Attorney Expertise (Or Lack

Thereof)

How Do We Evaluate Mold Claims?

● Good Fact Investigation: How bad does the mold look? How sick are the plaintiffs? How much property must be destroyed/repaired to remediate the mold? What are the most likely causes of mold?

● Good Expert Evaluation: How

credible is the expert? How qualified? Can expert communicate/explain well?

Damp Indoor Spaces And Its Effect On Health

● There is no generally accepted definition of dampness or what constitutes a dampness problem.

● There is no single cause of excessive indoor dampness and the primary risk factors for it differ across climates, geographic areas and building types.

● Institute Of Medicine of the National AcademiesWashington, D.C. www.nap.edu

Damp Indoor Spaces and Its Effect on Health

● One consequence of indoor dampness is new or enhanced growth of fungi (mold) and other microbial agents.

● Mold spores are regularly found in

indoor air and on surfaces and materials – no indoor space is free of them.

No Standard Definition of “Dampness”

● How free of microbial contamination a surface or building material must be to eliminate problematic exposures of mold to occupants is unknown. This is based in part on the notion there is no single generally accepted term defining dampness or damp indoor spaces or moisture; or what constitutes excessive moisture in buildings.

● Protocols still need to be developed to

characterize the nature, severity, and extent of the dampness as it affects mold growth.

Research and Definitions Are Incomplete

● Research is in the early stages of understanding the microbial ecology of buildings

● the length between dampness,

● different building materials and furnishings

● microbial growth, microbial

interactions, dampness-related chemical emissions from building materials, and

● their role on human health.

Exposure Assessment● There is a general lack of knowledge regarding

the role of micro-organisms in the development and exacerbation of diseases found in occupants of damp indoor environments.● lack of valid quantitative exposure-

assessment methods ● Poor knowledge of which specific microbial

agents may primarily account for the presumed health affects. ● Very few biomarkers have been

identified.● The validity of exposure not known.● The entire process of exposure is

poorly understood.

Methods for Assessing Human Exposure to Mold

● Present methods are poorly developed and more research is needed.

● Difficulty is related to the large number of

mold species ● Mold allergen content and toxic potential

vary among species. ● The best known method is still counting

cultured colonies, which is problematic

Toxic Effects Of Mold/BacteriaToxicological studies, which examine toxic

effects using animals or cellular models, cannot be used, by themselves, to draw conclusions about human health effects.

● Such studies have established that exposure

to microbial toxins can occur via inhalation and dermal exposure and through ingestion of contaminated food.

● The doses of such toxins required to cause

adverse health effects in humans have not been determined.

-Damp indoor spaces and health, Institute of Medicine (U.S.). Committee on Damp Indoor Spaces and Health

Stachybotrys Chartarum, Toxic Mold?

● The effect of Stachybotrys on humans has not been proven.

● biologically plausible, but not proven

● Research has found sufficient evidence of an association between exposure to damp indoor environments and some respiratory problems in asthmatic persons

● Epidemiologic studies also show there is

sufficient evidence to conclude the presence of mold indoors may be associated with upper respiratory symptoms in susceptible persons.

● But EXCEPTION for Weak Immune Systems!

Limited Or Suggestive Evidence

● An association between exposure to damp environments and shortness of breathe, lower respiratory illnesses, or otherwise healthy children and the development of asthma.

● It is not clear whether the later

association reflects exposure to mold or bacteria.

Inadequate or Insufficient Information

● Insufficient information to determine whether damp indoor environments or agents associated with them are related to a variety of health issues, including Acute Idiopathic Pulmonary Hemorrhage In Infants (IHPHI).

● The CDC has been encouraged to

pursue surveillance and additional research on this issue.

Difference between Scientific and Legal Cause

● Scientific community: If X, then Y 90% of the time, then X “causes” Y

● Legal community: If X, then Y

50%+, then X “causes” Y— “More Likely/Probable Than Not Standard”

Key Daubert/Kelly-Frye Case Citations

● Daubert v. Merrell Dow Pharmaceuticals (1993) 509 U.S. 579

● Kumho Tire Co. v. Carmichael (1999) 526 U.S. 137● People v. Kelly (1976) 17 Cal.3d 24 ● Frye v. United States (D.C.Cir. 1923) 293 F. 1013● People v. Leahy (1994) 8 Cal.4th 587● People v. Ward (1999) 71 Cal.App.4th 368● Ramona v. Superior Court (1997) 57 Cal.App.4th 107 ● Wilson v. Phillips (1999) 73 Cal.App.4th 250

Questions?● War Stories—Case Study Multi-Million Dollar Mold

Trial—Admitted Mold But Proved Client Wasn’t The Cause