Proliferating mold litigation: why mold is not the next "asbestos".

• Author: Graziano, Dominick J.

In the summer of 2001, a Texas jury awarded Melinda Ballard in excess of $32,000,000 arising out of a mold-related property damage claim. (1) Another Texas case involving mold contamination claims settled for $1.5 million after two weeks of trial. (2) While Texas juries have never been known to be shy about large plaintiff's awards, one can scan recent mold litigation reporters and find other multimillion-dollar awards related to mold claims. (3) For example, in California, a jury awarded Thomas Anderson $18.5 million in a coverage dispute over residential mold contamination. (4)

Many of these cases have striking similarities that help explain why a ubiquitous substance such as mold could be the source of multimillion-dollar damage awards. In a nutshell, three areas should be examined to understand the proliferation of mold litigation: 1) science's current understanding of mold and its effect on human health, including the lack of exposure and investigative standards; 2) mass media coverage of "mold contamination;" and 3) insurer "bad faith."

As is more fully set forth below, the discussion surrounding these three issues leads to the question of whether mold litigation is the next "asbestos litigation," or "lead litigation." This question has been addressed in the mold litigation literature and, if nothing else, has focused attention on the potential growth of mold-related claims. For reasons that will be explained, our answer to this question is no. Asbestos and lead litigation progressed in the direction they did for fundamental reasons which are not present with regard to mold-based claims. We do posit an alternative to the "asbestos" analogy, which might shed light on mold litigations future.

What We Know About Effects on Human Health

The rise of mold litigation has brought with it the attendant proliferation of mold experts pontificating on what, if any, health effects or disease are caused by mold exposure. Not unexpectedly, the answer varies with the Web site visited, the health literature reviewed, or the manner in which the question is asked. While it is fair to say that based on current research a general consensus among "experts" on mold and its possible human health affects has perhaps been reached, there are detractors.

The Centers for Disease Control in recent congressional testimony has attempted to set forth some basic general findings upon which it contends there is general agreement. (5) Science has estimated that there are between 50,000 and 250,000 species of fungi, (6) while fewer than 200 of these have been described as possible causes of human infection. There are more than 1,000 types of indoor molds that have been identified in homes throughout the U.S. Molds reproduce by making spores, (7) which because of their size and light weight are easily spread throughout the indoor and outdoor air. Further, mold spores have been found to resist dry adverse environmental conditions. Mold spores found in ancient tombs and temples thousands of years old have still been found to be viable. (8) The most significant causative agent for molds proliferation is the presence of moisture, warmth, and a food source. These causative factors help to explain, at least in part, why the relatively large portion of mold-related property damage claims occur in Texas, Florida, and California.

The CDC has documented mold infections in immunosuppressed individuals in hospital settings, where some nine percent of hospital-acquired infections are caused by fungi. (9) The predominant source of these infections is from inhalation of the fungus aspergillus by immunocompromised individuals. The mold-produced aflatoxins and ochratoxins have been classified by the National Toxicology Program as human carcinogens when ingested. (10) According to the CDC, there is also a good deal of scientific information validating respiratory illnesses among workers in industrial and agricultural settings commonly known as Farmer's Lung, Woodworker's Lung, and Maltworker's Lung, among others. (11)

According to a 1993 report titled "Indoor Allergies," published by the Institute of Medicine (IOM), airborne fungal allergens were most often associated with allergic diseases, such as allergic rhinitis/conjunctivitis, allergic asthma, and hypersensitivity pneumonitis. In its 2000 report, the IOM concluded that there is also sufficient evidence associating mold exposure with asthma outbreaks. (12) In contrast, the IOM found there is insufficient evidence showing a causal connection between mold exposure and the onset of asthma.

Many of the reports of mold-related illness occur in the workplace. According to the latest CDC research, there appears to be sufficient evidence to show: 1) a "significant relationship between reports of work related respiratory disease and visual assessment of water and mold damage in at least two studies; 2) significant relationships between endotoxin and ultra fine particles in the air and work related respiratory symptoms; and 3) significant relationships between indicators of mold in chair and floor dust and work related respiratory symptoms." (13) It is important to note, however, that the CDC research in these areas is ongoing.

Standardless Investigations

Due in large part to the paucity of available scientific evidence to establish a link between personal injury and mold exposure, there is a complete lack of government-imposed standards for determining what constitutes unacceptable levels of mold exposure. Simply put, there are no federal standards, nor any state standards, for determining acceptable levels of mold in the indoor air environment. This is about to change, however In 2001...