Introduction to Mold

What is it?How is it caused?

Most Common StachybotrysAspergillusCladisporiumPenecilliumTrichoderma

Introduction to Mold

Where does it grow?Methods of Exposure

DermalInhalationIngestion

Introduction to Mold

Law Suits / Claims

Personal Injury & Property Damage

Law Suits / ClaimsPersonal Injury Claims:

Respiratory ailmentsNose throat irritationAsthmaBrain damageSkin rashes/dermatitisHypersensitivity (multiple

chemical sensitivity)Exacerbation of pre-existing

conditionsAllergiesMemory lossCNS damageHeadache

Potential Claimants / Plaintiffs

• Home Owners• Renters (residential and commercial)• Commercial/Industrial Property Owners• Invitees• Employees• Others

Potential Defendants• Property Owners• Employers• Builders / General Contractors• Developers• Sub-Contractors • Remediation Contractors• Landlords• Design Professionals (A&E)

• Building Managers• Product Manufacturers• PPE Manufacturers• Realtors• Sellers• Inspectors• HOA’s• Carpet Cleaners• Sampling Companies

Types of ClaimsFailure to maintainNegligent selection of contractorNegligent designNegligent installation Negligent inspectionDesign defect (professional liability)Manufacturing defectFailure to address complaints (ADA)Breach of contractBreach of warranty

Implied fitness/habitabilityExpress warranty

Types of Claims• Strict liability (mass produced and products)• Misrepresentation and/or fraud• Breach of covenant of quiet enjoyment / constructive

eviction• Intentional infliction of emotional distress • Negligent infliction of emotional distress• Diminution in value• Loss of use• Punitive damages• Relocation• Lost rent• Wrongful death• Per quod claims

Potential Defenses

• Statute of Limitations• Statute of Repose• No Negligence/Foreseeability• Medical/Liability Defense• No Violation of Duty/Standard

Early Claims Handling

Settle or Assign to Defense Counsel?– Do you have all the information you need?• Diagnosis of a mold related condition• Complete medical/occupational history• Proof of liability• Air samples/wipe samples• Is remediation complete?

– Were/are costs reasonable?

• A reasonable demand?• Possibility of future claims?

Assigning to Defense Counsel

Initial Evaluation/Litigation BudgetIdentify what is missing that will allow you to

settle the case or defend aggressivelyObtain missing informationDetermine if experts will be neededPrepare budgetHow to set reserveOther considerations

Discovery• Interrogatories– Not limited to the use of form interrogatories

(toxic tort)

• Request for Production of Documents– Get all documents from Plaintiff– Get documents from third parties• FOIA/OPRA

• Geographic location of exposure– Flood plain– Industrial/Commercial Sites

• Notice of mold causing condition (SOL)

• Equipment used on site– sump pump– French drains– de-humidifier– air filters – HVAC

Discovery• History of structure

• Plumbing • Roof • Insulation • Foundation• Remodeling• Carpeting• Etc.

Discovery (cont’d)• Remediation

– Who did it– When it was done– Supporting Documentation– Notice

• Description of Mold– Could be ordinary, non-toxic

household mold

• Cleaning agents and chemical used in home

• Full occupational history

• Smoking • Drug/Alcohol

• Allergies– Pollen– Pets– Grass

• Symptoms of injury claimed– What are they– When did they start– What treatment has been

received– What records/testing are

available

Discovery (cont’d)

• Complete Medical History– All records– X-rays – PFT’s

• Pharmaceutical History• Out-of-pocket expenses• Medical• Wages

• Previous injuries/lawsuits• Hobbies

– Soil work• Cleanliness of exposure site

Deposition

Expand upon interrogatories and other paper discovery

Get as much detail as possibleLock Plaintiff into a story

Deposition (cont’d)Obtain impeachment/credibility information

Arrests/convictions (fraud, dishonesty, moral turpitude & felonies)Previous depositions and testimony in court Relationship with partiesWho the witness met with (when, where, how long, etc.) Who paid for travelOral or written statementsDocuments or statements reviewedPreparationWho was present during meetings Selection of AttorneyAsk for DL

Types of Experts• Industrial Hygienist

– Anticipates, recognizes, evaluates and controls health hazards in a work or home environment• Collects samples for analysis• Comments on the types of and amount of mold found• May be able to comment on sufficiency of exposure/dose response

• Mycologist– Expert in the study of fungi

• Can provide the same opinion as an industrial hygienist, but is more specialized

• Pulmonologist– Specialist in diseases of the lungs and respiratory tract.

• Will be able to comment on Plaintiff’s respiratory injury• Comments on link between mold and injury• Comments on sufficiency of exposure/dose response• Can provide theories as to alternative causation

Types of Experts (cont’d)• Allergist/Immunologist

– Physician who specializes in treatment of allergies• Will conduct IME• Skin test and blood test• Will comment on injury claimed

• Toxicologist– Studies adverse affects of chemicals/substances on living organisms– Good for general and specific causation

• Epidemiologist– Studies factors affecting health and illness of populations– Good for general causation– Can comment if substance can cause a particular illness only

Engineers/Construction ExpertsWill Comment on cause of intrusion/liability

Remediation ExpertWill comment on the methods employed to remediateWill comment on the reasonableness of costs

Real Estate ExpertsWill comment on the duty to discloseWill comment on loss of use and diminution

Types of Experts (cont’d)

Types of Experts (cont’d) Economist

Will comment on lost wagesWill comment on lost profits

InspectorsWill comment on inspector negligence Will comment on building code and whether code was violated

GeologistsStudies the physical structure and processes of the earth

HydrogeologistA geologist that studies distribution and movement of groundwater in the soil

and rocks of earth’s crustWill comment on whether groundwater or surface water was a cause or

contributor of conditionMost useful in professional liability claims

Investigation of Mold

Performed by Certified Industrial Hygienist (“C.I.H.”)Used to determine type and amount of mold

presentMust prepare chain of custodyUse AIHA accredited laboratory

Investigation of Mold Types of sampling

Bulk Is it mold and is it actively growing?Can culture mold to determine species

Surface samplesPrep-lifting sample via tape (microscopic exam)Swab/wipe-rubbed with cotton and placed on culture plate

(can collect dust samples also)

Surface mold v. airborne moldAbove methods show surface moldTo investigate airborne mold, must conduct air sampling (all

indoor environments have mold)Spore trap (air drawn across sticky surface)Impaction technique (spores drawn into a culturable

medium)

Compare indoor samples to outdoor samples

Admissibility of Expert OpinionsFrye versus Daubert versus Rubanick

1.Generally accepted within the scientific community2.Relevancy and reliability based on scientific

methodologya. Empirical testingb. Subject to peer review and publicationc. Known or potential error rated. Whether the theory and technique is generally

accepted by a relevant scientific community3.Acceptance of theory by a substantial minority

Admissibility of Expert Opinions

Does it really matter?Most studies have shown the result is the

same whether Frye or Daubert appliedRubanick will allow more opinions get to the

jury

Presented by:

Marc S. Gaffrey, Esq.Steven F. Satz, Esq.

Jacob S. Grouser, Esq.