AIR POLLUTION; SCHOOLS (GENERAL);
POLLUTION - AIR;
September 16, 2003
MOLD REMEDIATION LEGISLATION AND LITIGATION
By: Paul Frisman, Associate Analyst
You asked several questions about mold remediation laws and litigation. Specifically, you asked (1) if Connecticut or other states have laws on mold remediation; (2) for the primary focus of those laws, and (3) how courts have generally handled mold cases.
The Connecticut General Assembly passed legislation in 2003 that addresses the issue of mold and other potential health hazards affecting indoor air quality, but only in school buildings (PA 03-220, attached). Among other things, the act requires, that starting January 1, 2008, local school boards periodically evaluate school buildings built, extended, renovated or replaced after January 1, 2003, for potential exposure to microbiological airborne particles, including mold. The act makes school boards responsible for maintaining their facilities, requires operation of heating, ventilating and air conditioning equipment according to prevailing standards and allows school board to create indoor air quality committees to increase awareness of indoor air quality.
The National Conference of State Legislatures (NCSL) reports that six other states (California, Montana, New Jersey, Oklahoma, Tennessee and Texas) have enacted mold legislation. Another 38 bills were not enacted or were pending in 12 other states this summer (see attached lists).
This legislation focuses primarily on (1) gathering information about mold and its hazards; (2) establishing exposure standards; (3) regulating mold inspectors and remediation specialists; and (4) requiring realtors, landlords, and homeowners to disclose the presence of mold when selling property. We have attached summaries of this legislation compiled by NCSL and the National Association of Mutual Insurance Companies (NAMIC) (Legislation - Mold Bills).
On the federal level, U. S. Rep. John Conyers (D-MI) has introduced “The Toxic Mold and Safety and Protection Act of 2003” (H. R. 1268). It would direct the U. S. Environmental Protection Agency (EPA) and the Centers for Disease Control to study the health effects of indoor mold growth, direct the Secretary of Housing and Urban Development to establish inspection requirements for existing housing and construction standards for new housing, authorize EPA grants to remove mold in public buildings, create a toxic mold insurance program, and provide Medicaid coverage to mold victims unable to secure adequate health care. A more complete summary of Conyers’ bill is online at Bill Summary & Status. The full text can be found at http: //thomas. loc. gov/cgi-bin/query/C?c108: . /temp/~c108wNADkv
We could not find any laws specifically referring to mold remediation. However, plaintiffs may sue for damages resulting from exposure to mold under several legal theories, such as negligence and breach of contract.
Law journal articles estimate that there were about 10,000 mold cases nationwide in 2002, with the number expected to increase, particularly in states where the climate and construction of air-tight buildings are conducive to mold growth, such as Texas, California, and Florida. Claims were based on such grounds as personal injury, construction defects, bad faith, negligence, and failure to disclose. The largest verdict was apparently $ 32 million in the Texas case of Ballard v. Fire Insurance Exchange. (An appeals court later reduced that verdict to about $ 4 million in actual damages. )
BACKGROUND—WHAT IS MOLD?
Stephen C. Redd, chief of the Air Pollution and Respiratory Health Branch of the National Center for Environmental Health, states that there are an estimated 50,000 to 250,000 species of fungi, which includes mushrooms, mildews, molds, and yeasts. More than 1,000 different kinds of molds have been found in U. S. homes. Some species of mold produce a potentially toxic substance called mycotoxins, and these have tended to be the focus of mold litigation. Mold grows in moist, warm, places on such nutrients as wood, paper or other cellulose or carbon-based material. Although older buildings are more likely to have leaks that contribute to mold growth, newer buildings often are susceptible because their energy-efficient and air tight structure traps moisture and contains material conducive to mold growth, such as sheetrock.
Although mold has been linked to allergic reactions, exacerbation of asthma, and other respiratory complaints, there is less certainty about some of the claimed links between mold and serious illness. According to the American College of Occupational and Environmental Medicine, “current scientific evidence does not support the proposition that human health has been adversely affected by inhaled mycotoxins in home, school or office environments” (Adverse Human Health Effects Associated with Molds in the Indoor Environment, October 27, 2002).
Redd has stated that respiratory infections have been found in people with compromised immune systems and some farm and industrial workers regularly exposed to mold and that outbreaks of respiratory ailments have been reported in office buildings with mold-contaminated humidifiers and ventilation systems. But Redd said it is not known whether airborne mold causes such claimed health effects as pulmonary hemorrhage, memory loss or lethargy. He said people allergic to mold, or with chronic respiratory disease or suppressed immune systems (including people receiving chemotherapy, organ transplant patients, AIDS patients and people with uncontrolled diabetes) are more susceptible to fungal infections. The Centers for Disease Control began a five-year evaluation of work-related asthma and mold exposure in 1999. Redd said preliminary results show significant relationships between reports of work-related respiratory disease and water and mold damage in two studies.
Attorneys Cameron Kerry and Deborah Johnson write in “The Growing Problem of Mold,” in the September 2002 issue of Metropolitan Corporate Counsel that while there are “strongly suggestive case reports and animal studies,” there are not many comprehensive studies of the dangers of mold. The authors write that (1) there is some association between the presence of mold in homes and a number of respiratory symptoms, particularly among sensitive individuals, but that the symptoms may also be associated with other factors; (2) the relationship between levels of exposure and illness is uncertain; and (3) the burden of mold-related illness on the general population is unclear.
Acceptable Mold Levels
There are no accepted standards for indoor mold sampling or for analyzing and interpreting the data in terms of its effect on human health. Redd states that sampling difficulties and differing individual sensitivities make setting standards and guidelines for indoor mold exposure levels “difficult and [perhaps] not…practical. ” But Redd agrees with EPA that it is best to correct indoor mold contamination to prevent adverse health effects. (Testimony before the subcommittees on Oversight and Investigations and Housing and Community Opportunity, U. S. House of Representatives, July 18, 2002).
STATE MOLD LAWS
California’s law, the Toxic Mold Protection Act of 2001(California Health and Safety Code, § 26100 et seq. ) directs the state department of health services to determine the feasibility of adopting permissible exposure limits for indoor mold and develop standards for assessing the health threat it poses. It requires landlords and sellers of residential and commercial property to disclose in writing the presence or prior existence of mold. The disclosure requirements take effect after the state adopts standards and develops guidelines concerning toxic mold exposure limits and remediation.
The Montana law requires sellers of property, landlords and others to disclose the presence of mold if they know of such a problem. They may do so on at least one document executed before or at the time an offer is made to buy, rent or lease habitable property (HB 536).
The New Jersey resolution urges the state to develop ways to help residents identify a particular mold and develop strategies to address it. The resolution urges the commissioners of health and senior services and of community affairs to investigate the mold’s health effects and ways of removing it (SR 77).
Oklahoma created a 28-member task force on mold and mold remediation and required it to report its findings to state legislative leaders by February 2, 2004 (HCR 1011).
Tennessee requires the state education commissioner to establish guidelines for mold abatement in public schools, and creates a mold abatement task force (HB 891).
Texas requires the state health department to license mold assessors and remediators, and to establish and enforce minimum performance standards and work practices for conducting mold assessments and mold remediation (HB 329).
Law journals estimate about 10,000 mold cases nationwide in 2002, with more expected. Many of the cases were filed in warm weather states. Gordon Stewart, president of the Insurance Information Institute, testified before the House Financial Services Subcommittee on Oversight and Investigations on July 18, 2002, that mold claims had reached “crisis proportions” in Texas and were a serious problem in California, Florida, Arizona and Nevada.
Defendants and Theories of Liability
Claimants are suing a variety of defendants under several theories of liability. The author of an April 2003 article in the Pepperdine Law Review entitled “Mold Is Gold: But Will It Be The Next Asbestos?” states that the most common claims are negligence in investigating or correcting leaks and mold growth, construction defects, bad faith, and failure to disclose mold’s presence. The most common defendants are landlords (failure to ensure property is fit for human habitation); builders and contractors (for violating a construction contract or an implied warranty that the structure is designed in a reasonably workmanlike manner); realtors and property owners (for failing to reveal the existence of mold); and insurance companies (for failing to adequately respond to mold claims).
Because there are so many cases, each with a unique fact pattern, it is hard to discern a trend in how courts are handling them. Below are some of the cases reported in “Litigation Soars on the Menace of Mold Spores” (The Legal Intelligencer, August 25, 2003). (Case names are provided where known. )
1. A Florida jury awarded a county $ 14 million in damages and prejudgment interest for construction defects in a courthouse that led to 15 workers falling ill (Centex-Rooney Construction Co. v. Martin County).
2. A Sacramento jury awarded $ 2. 7 million to a family that claimed to have suffered a toxic reaction to mold growing in its apartment (Mazza v. Shurtz, 2002).
3. The Delaware Supreme Court upheld a $ 1. 045 million award to two tenants after their landlord allegedly failed to fix water leaks and resulting mold growth (New Haverford Partnership v. Stroot, May 8, 2001).
4. A group of tenants in a New York City housing complex settled for more than $ 1 million after filing numerous mold-related lawsuits against building management.
5. A tenant in a New York apartment project is seeking $ 180 million for injuries alleged to have been caused by toxic mold.
6. A Texas woman sued her insurer for failing to adequately repair her 11,500-square foot home after she filed a water damage claim (Ballard v. Fire Insurance Exchange).
Admissibility of Expert Testimony in Personal Injury Claims
A key factor in these personal injury claims is the admissibility of expert medical evidence on the effects of mold exposure to health.
The lack of medical certainty about mold health risks has caused several courts to refuse to admit testimony from plaintiffs’ expert medical witnesses. According to the National Law Journal, trial courts in Delaware, New York, Texas and a federal court in Arkansas have excluded expert testimony linking mold to various ailments, but the Delaware Supreme Court, and courts in Florida and Nebraska have allowed such testimony. (It should be noted, however that the Ballard jury awarded the plaintiff $ 32 million in damages even though the court in that case excluded such evidence. )
IS MOLD THE NEW ASBESTOS?
The difficulty in proving causation between mold and illness is one of the factors that distinguish mold claims from asbestos claims, according to the Pepperdine Law Review. Additional distinguishing factors are that:
1. there is no “signature disease” linked to mold, such as asbestosis, lung cancer and mesothelioma, connected to asbestos exposure;
2. mold injuries are less severe than those related to asbestos, which can kill;
3. there are no specific tests doctors can use to test for mold exposure;
4. symptoms associated with mold occur only in its presence, and symptoms generally disappeared when exposure ends, unlike asbestos;
5. there are no federal guidelines for permissible mold exposure limits;
6. there are no “deep pockets” product manufacturers, as there were for asbestos; and
7. insurers often exclude mold coverage from insurance policies.
The law review article concludes that these and other factors will prevent mold litigation, at least as far as personal injury claims, from reaching the level of asbestos litigation. Furthermore, the author writes, insurers are actively seeking to limit their potential liability for mold damages, which should further limit the size of mold litigation.
There is an abundance of information about mold and mold litigation on the Internet. Some sites that may be useful are the EPA site, Indoor Air - Mold Resources, the Centers for Disease Control, Mold - National Center for Environmental Health, the American College of Occupational and Environmental Medicine, ACOEM - Evidence Based Statements, the U. S. Chamber of Commerce, Chamber Calls Mold Litigation A Growing Problem-Papers Conclude There’s No Scientific Evidence To Support Lawsuits, the NAMIC site, MoldUpdate. com, and any number of plaintiffs’ attorneys sites, such as TOXIC MOLD - TOXIC MOLD LITIGATION,LAWYER,ATTORNEY - TOXIC MOLD SYMPTOMS!
One should bear in mind that some of these sites offer a particular point of view concerning the hazards of mold.